Petition for Writ of Certiorari — Dalvit v. United Airlines, Inc.

10) aah se Court, U.S.

136 3 APR 24 2010

| OFFICE

OFFICE OF THE CLERK

Supreme Court

of the United States

DAVA DALVIT and

DEBRA BENJAMIN,

Petttoners,

UNITED AIR LINES, IN¢

Respondent

On Petition for a Writ of Certtorari to the

United States Court of Appeals

for the Tenth Circut

PETITION FOR WRIT OF CERTIORARI

Inhn R Obleen*

Olsen & Brown, LLC

$362 Greenwood Drive

Niwot, Colorado 80503

(303) 652-1133

Counsel for Petitioners

*Counsel of Record

QUESTIONS PRESENTED

The ‘Tenth Circuit 1s now approving novel

procedural devices to dismiss ‘Title’ VII

retaliation cases including (a) requiring the

victim of retaliation in the workplace to list

each “discrete” retaliatory act against him or

her in the EEOC charge as a prerequisite to

filing in court (thus obviating the prior rule that

eventually-filed court claims could include acts

that would have been naturally encompassed or

discovered within the HEOC’s investigation

even if not listed as “discrete acts” in the EEOC

charge; (b) obviating F.R.E. 701° opinion

evidence of long-term employees based upon

reasonable conclusions from their own

observations of discrimination and retalhation

in the workplace; and (c) requiring “substantial

evidence” of pretext in derogation of Hfeeves v

Sanderson Plumbing Products, fac., 530 U.S

133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000),

which established that a mere suspicion of

mendacity was sufficient to survive summary

judgment. Multiple circuits have adopted the

new, tougher standard for a showing of pretext.

The questions presented are:

Whether retaliation complainants are

required to list each specific employer act

against them in their HHOC charges in order to

later complain about those specific acts In

federal court.

QUESTIONS PRESENTED (cont'd)

Whether Title VII retalhation victims can

bring actions in federal court as to acts that

would have been encompassed within the

MlOC investigation even if not specifically

listed in the EEOC charge

Whether oR Le 70] applies to

discrimination/retahiation witnesses who have

observed company practices, including

retaliation practices, for many years so that they

may express lay opinions thereon

Whether “substantial evidence" of pretext,

rather than a mere suspicion of mendacity, 1s

requircd to defeat motions for summary

judgment in discrimination/retabation cases.

PARTIES TO THE PROCEEDING

‘There are no parents or subsidiaries known to

petitioners

TABLE OF CONTENTS

Pape

(uestion Presented ]

Table of Contents . iV

‘Table of Cited Authorities Vii

Opinions Below .. —

Jurisdiction l

Statutory Provision Involved l

Statement of the Case

A. Factual Background 2

8. Decision of the Court of Appeals. . . a

Keasons for Granting the Petition 28

TH CIRCUITS ARI SPLIT Ss TO

WHETHER RETALIATION COMPLAINANTS

ARE REQUIRED TO LIST KACH “DISCRETE”

MMPLOYER ACT AGAINST THIEM IN THEIR

KEOC CHARGES IN ORDER TO LATER

COMPLAIN ABOUT THOSE ACTS IN

PEDERAL COURT

THE CIRCUITS ARE SPLIT © TO

WHETHER RETALIATION VICTIMS CAN

BRING ACTIONS IN THE FEDERAL

COURT AS TO ACTS THAT WOULD HAVIs

BEEN ENCOMPASSED WITHIN THE EEOC

INVESTIGATION EVEN I fe NOT

SPECIFICALLY LISTED

I]

THE TENTH CIRCUIT HAS OBVIATED

APPLICATION OF RE. 701 IN

DISCRIMINATION/RETALIATION CASES

SO THAT LONG-TERM EMPLOYEES CAN

NO LONGER TESTIFY AS TO THEIR

OPINION FROM DIRECT OBSERVATION

Ol DISCRIMINATORY AND

RETALIATIORY PRACTICES.

It.

THE TENTH CIRCUIT 5 NOW

MRRONEOUSLY REQUIRING

"SUBSTANTIAL EVIDENCE" OF PRETIEXT

BieFORE PERMITTING DISCKIMINATION

AND RETALIATION CASES TO GO TO

THE JURY. MERE SUSPICION OF

MENDACITY PURSUANT TO REEVES’ V.

SANDERSON PLUMBING WILL NO

LONGER SUFFICE TO DEFEAT MOTIONS

FOR SUMMARY JUDGMENT.

Conclusion

Appendix Cs

Dalvit and Benjamin Vv.

Inc. AOth Cir., Jan. 26,

Dalvit and Benjamin v

Inc. (D.Colo. August 11,

U/nited Airlines

2010)

United Arrhines

2008)

40a

TABLE OF CITED AUTHORITIES

Page

Cases

Bergene v. Salt Kiver Project Agr 34

Imp. and Power lU1st.,

272 F.3d 1136 (th Cir. 2001)

Bodett v. CoxCom, Inc., 34

366 F.3d 736 (9th Cir. 2004)

Cherry v. ftitenour School l1st., 35

361 F.3d 474 (8th Cir. 2004)

Cornwell v. Nlectra Cent. Credit Union, 34

439 F.3d 1018 (9th Cir. 2006)

Fantini v. Salem State College, 29

557 F.3d 22 (ist Cir. 2009)

Godwin Vv. Hunt Wesson, inc. . . 35

150 F.3d 1217 (9th Cir. 1998)

‘w*~

Gossett v. Oklahoma ex rel. Board of . . <P

Kegents tor Langston University,

245 F.3d 1172 (10th Cir. 2001)

Jones Vv. United Parel Serv., {nec., . . | 30

502 F.3d 1176 (Oth Cir. 2007)

Manutt v. Bank of America, NA, 34

339 F.3d 792 (9th Cir. 2003)

TABLE OF AUTHORITIES --Continued

Martinez v. f’otter, .

347 F.3d 1208 (10th Cir. 2003

Mathirampuzha v. Potter,

I". 3d 70 (2nd Cir. 2008)

Hleeves v. Sanderson Plumbing, Inc.,

530 U.S. 133, 120 S.Ct. 2097,

147 L.Ed.2d 105 (2000)

Stegall v. Citadel Broadcasting Co.,

350 F.3d 1061 (9th Cir. 2003)

Weigel v. Baptist Hosp. of lh. Tenn.,

302 F.3d 367 (6th Cir. 2002)

Statutes

28 U.S.C. § 1254(1)

42 U.5.C. § 2000e et. seg

Petitioners Dava Dalvit and Debra Benjamin

(“petitioners") respectfully request 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 not

reported, and is set forth at Appendix, pp. 3a-39a

The underlying opinion of the district court was not

reported and is set forth at Appendix 40a-70a.

JURISDICTION

‘The decision of the court of appeals was entered

on December 21, 2009. Petition for rehearing was

denied January 26, 2010. The jurisdiction of this

Court 1s invoked pursuant to 28 U.S.C. § 125401)

STATUTORY PROVISION INVOLVED

Title VIT of the Civil Rights Act of 1964, 42 U.S.C

§ 2000e et seq., provides in pertinent part as foliows

(a) Employer practices

It shall be an unlawful employment

practice for an employer

(1) to fail or refuse to hire or to

discharge any individual, or otherwise

to discriminate against any individual

with respect to his compensation, terms,

conditions, or privileges of employment,

because of such individual's scx

It shall be an unlawful employment

practice for an employer. . . to

discriminate against any individual

because he has opposed any practice

made an unlawful employment practice

by this title

STATEMENT OF THE CASE

A. Factual Background

Plaintiffs, both females, were management

employees -- ramp supervisors ~~ for United Air Lines

in Denver.

PLAINTIFFS WERE ACCUSED OF

WRONGDOING THAT WAS ALMOST

IMMEDIATELY PROVEN FALSE AND

YET SUSPENDED WITHOUT PAY FOR

ABOUT ONE MONTH. MEN WERE

NOT TREATED THE SAME UNDER

IDENTICAL CIRCUMSTANCES

Plaintiffs performed their jobs well for many years,

among the few women working directly with the

aircraft on the ramp. Nonetheless, on or about

December 28, 2005, they were suspended without pay

upon an accusation that they had been short-changing

the company in their work hours, 1.c. coming in late or

leaving early lt was Christmastime, and _ both

plaintiffs were single parents

An investigation was instigated by the ramp

manager, Kevin Mortimer, who ordered a subordinate

to obtain "badge histories" Ge. clock-in and clock-out

times) on plaintiffs That documentation (which

proved the plaintiffs innocent, as shall be discussed

infra) was presented to an investigator summoned to

Mortimer's office. "I showed them [the documents] to

Kevin Mortimer. When I! gave the documents to Jean

Massey, we were in Kevin's office, it was Kevin,

Jeannie, and myself. So I showed them to Kevin and

Jeannie, and then left all the documents with

Jeannie." Massey told Mortimer, however, that such

an investigation would "open up a big can of worms

Nonetheless, Mortimer instigated the investigation

of plaintiffs, even though plaintiffs' own boss, James

Nail, informed Mortimer that he had no facts

supporting any assertion that plaintiffs had done

anything wrong

Despite Nail's statement that he had no evidence of

wrongdoing, Nail was instructed by Mortimer to

launch an investigation of plaintiffs anyway

At the time, there were about 47 supervisors on the

ramp, and only six females among them. Dalvit: "It

has been very slow to change Women are still

believed by certain men to be bad luck on the ramp."

Benjamin "We were suspended immediately

without pay Nothing like that could ever happen

without Kevin Mortimer commanding that it be done

or approving that it be done. That was the history of

Kevin Mortimer in Denver. He controlled every

personnel action in all the time he was in Denver. It

did not matter to him that we were single parents

being suspended without pay at Christmas time."

Such opinion was patently based upon Benjamin's

personal observations having worked at United since

1998 It was thus permissible as lay opimion

testimony pursuant to I. R.E. 701

The defense, from the outset of the case,

misrepresented pivotal acts to the trial court or

example, the defendant asserted in its Answers to

hirst Amended Complaints and in discovery responses

that plaintiffs were "held out of service with pay."

This was false. Plaintiffs were suspended for almost

one full month -- at Christmastime -- without pay

Thus, the litigation unfolded based upon a false

premise until United's own documents proved the

truth

But Mortimer did more than merely direct that

plaintiffs be investigated The United investigator

herself [Jean Massey] testified under oath that

Mortimer then approved further adverse actions

against plaintiffs -- removing them from their special

assignments working on a special project at the airport

-- the so-called FIT team

As the alleged basis of their groundless suspension

without pay, plaintiffs were shown documents -- sheets

of “rings" -- which were printouts of their entrance

times and departure times to and from the airport

Which the corporation initially claimed proved

plaintiffs had short-changed the corporation in their

hours worked. This was the sole basis for Mortimer's

approving their suspensions

The “rings" themselves, sitting in front of

Mortimer, proved that the accusations against

plaintiffs were groundless. United Air Lines asserted

to the U.S Mqual KM mployment Opportunity

Commission that the requirement was that plaintiffs

work 80 hours every two weeks I" . . but the

expectation was that team members worked at least

80 hours in a two week pay period."] Thus, the

accusation apainst plaintiffs was false, and

immediately shown to be so. The “rings” confirm that

from November 26 through December 9, 2005,

Plaintiff Benjamin worked 86.3 hours. Plaintiff Dalvit

worked 93 hours

Plaintalf Benjamin: "JI explained to them that they

were wrony. ‘That we had worked the proper hours,

but they refused to examine the evidence in their own

hands. We were walked out [suspended] and Kevin

tt

approved it as a suspension without pay

Piaintul Daivit: “i was handea a shcst of paper

with 30 different rings in a month, a month's worth of

the rings that they had pulled. And in calculating

that, I had actually worked over the expected amount

of time."

fgut the grounds for suspending plaintiffs for one

month without pay were false for other reasons as well

©

(et alone that they did meet the requirement of

working 80 hours every two weeks). Dalvit: “We were

accused of leaving work early on certain days but

we had been told that that was permitted. Our hours

on the FIT’ team were flexible. We were instructed

that we would be leaving early some days, working

late on others. That was explained to us by Steve Nail

from the very outset

Nail instructed that, "there will be some days you'll

work six hours; there will be some days you'll work

twelve hours. And I'm okay with that as long as the

job gets done."

The Minutes of the initial FIT team meeting

confirm that the team members were expressly

informed they could leave early and that hours would

be flexible. [Handwritten Minutes of FIT team initia]

meeting on November 11, 2005 -- "Very flexible

schedule -- no set time . Some days longer...Some

days shorter."].

Dalvit: “From the very outset, Kevin [Mortimer]

and Jean [Massey] were informed what we were told

when we joined the [IT team, that our hours were

flexible. But Kevin suspended us anyway."

Indeed, male employees on Nail's team informed

the United investigator that they were permitted to

adjust their hours and to work "more or less hours in a

day." This was pursuant to instructions from Nail

himself, their manager.

Thus, plaintiffs were punished -- sent home without

pay -- for doing something that males were permitted

to do with impunity.

Dalvit: “They had this information from the very

first day, and we were cleared of any wrongdoing

immediately. Yet Kevin Mortimer kept us off work

without pay for four weeks at Christmas time.’

The males who worked such flexible hours -- less

than eight hours on some days -- were George

Bellopatrick and Jeff Freitas, according to the United

investigator, Massey, who also said that the two men

never suffered any adverse consequences, in stark

contrast to the punishments that plaintiffs received.

Bellopatrick and Freitas never suffered any adverse

consequences for working fewer hours even though

management [Nail] was aware of it, according to the

investigator, Massey.

Thus, men were not treated the same under

identical circumstances Gn the same unit at the same

time). Another member of management, Denise

VanDyke, observed (and testified m deposition) that

men on plaintiffs' team left early and never got into

trouble for it. VanDyke also testified in her deposition

that men were not docked for being late, and she

named the men who were late and never punished tor

it: Sam Ehmer, Mark Kinslow, Grey Morton, George

Bellopatrick, John Darrow.

Benjamin: "An employee named Paul Iishler was

investigated for leaving work carly, and Jean Massey

conducted the investigation. Sut he was not

suspended without pay, lhke we were. And the

investigation was ultimately dropped with no

discipline

(Jnder similar circumstances, plaintiffs had never

heard of a male being held out of service without pay

in all their years at United.

Senjamin: “What was disturbing is that Kevin

[Mortimer] did not have the men investigated. They

were leaving early and often, and he knew it. Steve

Nail was well aware of it, and no one ever did a thing

to the men. But it is characteristic of Umited that

women on the ramp will get into trouble for almost

anything but men will never even get their wrist

slapped. Kevin Mortimer made this happen. He was

decidedly anti-female. Remember that this was an old

timer in the airlines industry. He had come from

another airline and he was very set in his ways. He

did not hke women on the ramp

Dalvit testified that all of the male members of the

FIT team (also called the ROP team) left early without

informing their supervisor (Nail).

Benjamin testified as to a lengthy list of males who

left carly, did not change or accurately enter their

“cert" record [departure certification record] into the

computer system and were never disciplined

‘Thus, upon the summary judgment submissions, it

was overwhelmingly evident that plaintiffs were

treated disparately as compared to men by being sent

home without pay at Christmas for a month -- on false

charges. Most of these men were on the FIT team

with plaintiffs, working under the same superviso)

and therefore they were ideal comparators — and neve)

disciplined for doing exactly what plaintiffs were

accused of

In sum, the roof was brought down on plaintiffs fo

actions (a) that were cleared and approved by their

boss and (b) that the men on their team committed

with impunity. Indeed, Nail himself informed Massey,

the investigator selected by Mortimer, that his

subordinates were working “longer hours and different

hours, and they were flexing their time their hours

3

tt

start and stop times would change

Benjamin "If you are a woman at United, you

have to always be wat hing What you are doinp It's a

pood old boy club and if you have one misstep

manauvement will come down on you, whereas the men

Again, these were lay

Bi

pet away with everything

observations admissible pursuant to F.LR IE. 701

When plaintiffs were shown to be tnnocent of the

original charges, Mortimer moved to alter’ the

accusations against plaintiffs. He decided to claim

or approved the accusation by the investigator that

plaintiffs were culpable for “failure to respect the

. ha ‘ / 4

INVESLIPALIVE Procesd (Uy asning Otnel mahakzers il

they recalled the announced flexibility of their hour:

at the outset of the I I'T’ team)

Dalvit: "That comment and that letter could neve:

have been placed in our files without the approval of

Kevin Mortaumer. Nothing hke that ever happened in

the Denver ramp without Kevin's fingerprints being

lO

all over it. What happened here is that Kevin was

scrambling to try to make something -- anything --

stick. Finally, he had to give up and just try to get us

for talking with the men on the team to see why they

hadn't been treated the same as we were. But of

course this was a false allegation also, because no one

told us when we were told to go home that we couldn't

talk with anyone else."

Indeed, plaintiffs were innocent of the new

accusation. No one had ever told plaintiffs that what

was eventually labeled an “investigation” was

confidential. Hf it had been confidential, plaintiffs

would have been required to sign a confidentiality

document at the outset. Indeed, defendant's counsel

possessed such a document, in blank, at one of the

depositions. Plaintiffs were not asked to sign such a

document

Indeed, plaintiffs were never told it was an

investigation in the first place or that 1t was secret.

Sut the plaintiffs were innocent of all accusations,

and the investigator so testified The United

investigator [Masscy] repeated again and again under

oath that her investigation found no evidence of any

violations of rules, procedures or policies of United Air

Lines by plaintiffs.

Massey: "IWle couldn't — find anything Lo

substantiate that they did anything wrong or violated

any rule.'

Ultimately, Mortimer himself had to admit in his

deposition that it was determined that nothing that

plaintiffs had done broke any of United’s rules.

Mortimer: “There were no rule violations

determined during the course of the investigation.”

Then why was all of this happening to plaintiffs?

The reason is as follows: Plaintiffs had "challenged"

Mortimer by immediately filing a claim of sex

discrimination against him with United's Chicago

headquarters. They filed their discrimination claims a

few days after they were suspended, as will be

discussed mitra They also complained — of

discrimination zmmediately to the manager assigned

to investigate (Jean Massey).

Mortimers reaction was immediate, violent’ and

provable through the sworn testimony of a high-level!

manager who directly witnessed what Mortimer did

next. Thus, Mortimer launched into tirades about

plaintiffs’ claims of discrimination ~-- tirades of

retaliatory animus -- in closed-door mectings. United

management employees who were present at’ such

closed-door meetings had the courage to tell the truth

in depositions about Mortimer's retaliatory comments,

conduct and commands, as will be discussed snfra.

MEN CONDUCTED THEMSELVES IN

IDENTICAL FASHION AND YET WERE

NEVER HELD OUT OF SERVICE, LET

ALONE SENT HOME, WITHOUT PAY.

"

Benjamin: "In my years at United, men have been

held out of service for investigations but invariably

12

4

they are held out with pay. But I never heard of any

men held out of service for a pay certification issue,

which ts what happened to Deedee and me. I provided

to United documents that showed that men on the FIT

team [which was her own team] came late and left

early and that their MARS calendars never reflected

what they were actually working. I had documents

that showed that men were repeatedly late and

nothing ever happened to them. That's why Steve

Nail ultimately had to admit that Deedee's and my

pay certifications were never an issue, even though

that's what Kevin Mortimer was claiming against us."

Note: As discussed supra, Mortimer reluctantly

testified in deposition that, as it turned out, there was

no evidence that plaintiffs had committed any wrongs

with regard to pay certification (or anything else for

that matter). Dalvit: “Kevin Mortimer knew this from

the very outset, and still had us suspended and sent

home without pay during the Christmas season -- for

one month knowing that we were single mothers

with no other source of income... . I went 30-some-odd

days without having any income in my family.” It

was, said Benjamin, "the darkest period of my life. I

thought I was going to go under and lose everything."

FELLOW MANAGERS TESTIFIED

THAT MORTIMER WAS ANTI-FIEMALE

AND TREATED WOMEN WORSE THAN

MEN.

Plaintiffs’ perception that Mortimer was anti

female and treated them disparately was no

aberration. Other manapers, including those who still

is

work at United, observed the same thing Larry

Kverett, who was a_ supervisor (a management

position) attended the same meetings as plaintiffs did

with Mortimer and observed Mortimer's conduct

Kverett testified that he observed that Mortimer

and all of the operations managers (who were all men)

treated women more harshly than men. Indeed, the

women were yelled at by the males, and the men were

not similarly victimized In particular, Everett

directly witnessed Mortimer treating women more

harshly than men. Everett was so upset by Mortimer's

inferior treatment of women that he had the courage

to call Mortimer's attention to it. Upon leaving a

particular meeting, Everett,told Mortimer, referring to

his mistreatment of women, "That's just wrong.

Mortimer responded, "They'll get over it." Id

Plaintiffs were present during the meetings that

Kverett referred to.

Dalvit: "United used to be all male, and women

were not allowed to work on the ramp. The old school

managers who have been in the industry a long time

still think that women are bad luck on the ramp, and

they don't want women out there. Kevin Mortimer

made no bones about. He hated women on the ramp,

and anyone could see it. in his day-to-day treatment of

any women under his thumb." Thus, Dalvit testified

pursuant to F.R.E. Rule 701 regarding her own

observations of Mortimer's anti-female conduct

STILL OTHER MANAGERS (WHO

STILL WORK FOR UNITED) OBSERVED

THE SAME MISTREATMENT OF

14

WOMEN BY MORTIMER

In this litigation, many present United managers

testified in deposition unwillingly about

Mortimer's (their own manager's) mistreatment of

women before their own eyes VanDyke observed

Mortimer's treatment of women in an inferior fashion

as Compared to men for well over a year. During that

time, she had actual interaction with, and observation

of, him. Her testimony was thus wholly admissible

pursuant to F_R.E. 70]

ANOTHER HIGH-LEVEL OPERATING

MANAGER COMPLAINED DIRECTLY

TO MORTIMER ABOUT TREATING

WOMEN AS INFERIORS.

Rhonda Patterson-Kachus, who rose to the level of

operations manager, one of only a few females in that

high position in United's history in Denver,

complained directly to Mortimer about his disparately

worse treatment of women. Patterson-Eachus (who

still works for United today) testified under oath that

she directly observed that Mortimer treated men and

women differently. Again, such opinion testimony is

wholly admissible pursuant to F.R.E. 701 when based

upon the personal observation of the witness

MORTIMER STATED HIS BELIEF

THAT WOMEN SHOULD BE "HOME,

BAREFOOT AND PREGNANT, IN THE

KITCHEN." HE WAS NOT JOKING

Mortimer was an open sexist He announced

15

(seriously) in October 2005 that, "Women belong at

A

home, barefoot and pregnant, in the kitchen

PLAINTIFFS WERE CLEARED OF

ANY AND ALL WRONGDOING.

United had cnough information on the very first

day to clear plaintiffs, but plaintiffs were suspended

without pay for nearly a month. Thus, it was no

surprise that after nearly one month of being

suspended without pay, the investigation resulted in

“no finding, nothing founded” against plaintiffs. This

was according to one of the highest level managers in

the Denver hub, Patterson-Kachus

The United investigator herself [Massey] testified

under oath that as to the accusations against plaintiff

that had gotten them suspended from work without

pay (unlike males who had done the same thing but

not been punished), "[Wle didn't find anything to

substantiate a claim." Massey was unequivocal in

reiterating under oath that her investigation found no

evidence of wrongdoing by plaintiffs. [Q. Did you find

indications or evidence of any wrongdoing by them

[plaintiffs]? A. No.J. And the investigator repeated

under oath that her investigation found no evidence of

any violations of rules, procedures or nolicies of United

Air Lines by plaintiffs. "[Wle couldn't find anything to

substantiate that they did anything wrony or violated

any rule."

Thus, the investigator [Massey] testified that no

disciplinary action of any kind was found to be

appropriate.

Kven Mortimer, a'though jousting in his deposition,

had to admit that neither he nor anyone else had any

evidence that plaintiffs had not lived up to

expectations of munapement

indeed, Mortimer reluctantly admitted under oath

that with regard to the pertinent topics of the

investigation, “she [the investigator] didn’t say

anything negative about them I[plaintiffs]

MORTIMER TOOK ADVERSE ACTION

AGAINST PLAINTIFFS ANYWAY,

KVEN THOUGH THEY HAD BEEN

CLEARED OF WRONGDOING.

Kiven after plaintiffs returned from their groundles:

and unduly extended suspension without pay,

Mortimer continued the disparate treatment lie

promptly had plaintiffs removed from their special

assignment, the FIT team lt was Mortimer who

approved thai action (the United investigator herself

testified under oath that it was Mortimer who

approved plaintiffs being removed from their team)

According to Mortimer, the rationale for removing

plaintiffs from the FIT team upon their return from

suspension was that there was an issue of "credibility."

At first in his deposition, Mortimer clasamed he did not

know the reason for removing plaintiffs from the FIT

team But then, in reversing himself, Mortimer

claimed that there were “credibility issues as member:

of management.’

However, Mortimer wouldn't be pinned down on

the basis of the alleged “credibility issues.” I[Xither hi

couldn’t remember or he had no specifics. Mortimer'

perception of "credibility issues" was perfectly

subjective and perfectly pretextual under

discrimination/retaliation analysis ‘This

particularly so since Mortimer suffered such a memory

los S

SINCE PLAINTIFFS WERE CLEARED

OF ANY AND ALL VIOLATIONS OF

UNITED RULES, POLICIES AND

PROCEDURES, THE MOTIVATION

FOR PUNISHING THEM WAS

EXPOSED: RETALIATION (WHICH

MORTIMER HAD THE TEMERITY TO

ANNOUNCE IN A SECRET MEETING)

A few days after plaintiffs were suspended from

work and sent home without pay, they had the courage

to file a formal complaint of discrimination with

United's headquarters in Chicago. Indeed, a senior

HR manager confirmed that plaintiffs had complained

about discrimination to HR in Chicago

Plaintiff Benjamin informed United that she was:

going to obtain a lawyer. Astoundineglyv, United's HR

department in Chicago told Plaintiff Benjamin "that

she couldn't have legal representation." She was thus

"incorrectly advised," another HR employee testified in

this litigation

Dalvit testified that immediately after she

complained about discrimination to United's Hikk

Department in Chicago, Mortimer's already bad

treatment worsened: "[H]e wouldn't even acknowledge

me in the hallway, he wouldn't acknowledge my

presence." This being treated like a persona non grata

made Plaintiff Dalvit's further advancement in the

company impossible

Plaintiff Benjamin testified that she, too, was

treated by Mortimer as if she was nonexistent once she

complained about discrimination

Mortimer testified that he was well aware of

plaintiffs complaint to United headquarters in Chicago

about harassment and discrimination; he believed he

was informed shortly after plaintiffs registered their

complaint. Thus, within a few days of plaintiffs’

Suspension without pay, Mortimer was aware that

they had complained about discrimination to Chicago

Patterson-Kachus testifed that Mortimer was

aware of plaintiffs’ claim of sex discrimination and

informed his subordinates at a staff meeting. A lower

level manager informed Mortimer of plaintiffs' claims

of discrimination to Chicago when the lower-level

manager got a telephone call from (Jnited

headquarters in Chicago about it IQ Did you

mention to Kevin Mortimer that you had received a

call from HR in Chicago? A. That's why I went to

Kevin's office, and | mentioned to him that call a

Astoundinely, Mortimer told Lhe lower

manaver {Nail] "to disregard that call

Mortimer then set in motion a course of retaliation

19

for plaintiffs’ complaints of sex discrimination. to

Chicago that was exposed by another high-level

manager who listened to him in the same closed-door

meetings and testified truthfully in deposition, as will

be discussed sunfra.

PLAINTIFFS WERE THEN SUBJECTED

TO A COURSE OF DISCRIMINATION

AND RETALIATION THAT ENDED

THEIR CAREERS AT UNITED -- ALL

ENGINEERED BY MORTIMER. HE AS

MUCH AS ADMITTED SUCH BEHIND

CLOSED DOORS.

COURAGEOUS TESTIMONY BY HIGH

LEVEL MANAGERS EXPOSED

DISCUSSIONS IN SECRET MEETINGS

AND MORTIMER'S OVERT

STATEMENTS OF RETALIATORY

ANIMUS. SUMMARY JUDGMENT

SHOULD HAVE BEEN OBVIATED BY

THIS EVIDENCE ALONE.

Ithonda Patterson-Kachus became plaintiffs

supervisor upon their return from suspension

However, Mortimer ordered that their return would be

attended by “stipulations” including an “action plan,"

according to Patterson-Kachus

20

Demonstrating that Mortimer's own testimony

could not be believed and that mendacity has been

demonstrated in this case beyond any doubt, Mortimer

denied knowing anything about the action plan that he

commanded to be created. Mortimer testified that he

had no idea why an action plan was discussed for

plaintiffs. Indeed, Mortimer testified that he had no

knowledge of any information that could form the

basis of an action plan.

Nonetheless, Patterson-Kachus testified under oath

that she was instructed by Mortimer to prepare an

“action plan” for plaintiffs, and give it to Mortimer. It

set forth some “extremely stringent” guidelines for

plaintiffs, and “Debbie and Deedee were successful in

meeting their action plan,” according to Patterson-

Kachus They were both “effective” supervisors.

More tellingly yet, Mortimer focused at secret staff

meetings (plural) upon plaintiffs' complaints of

discrimination and told his subordinates to be careful

in their dealings with plaintiffs and to document

everything

Then Mortimer ordered that plaintiffs were not

allowed to become shift’ supervisors. This was

according to the deposition testimony of Patterson

IKKachus herself

lurthermore, Mortimer commanded Patterson-

Kachus that Plaintiff Dalvit “will not be moved to days

[desirable day shifts], she will remain on swings

[undesirable swing shifts], and she will not be used as

21

a shift supervisor.”

Mortimer told Patterson-Kachus that Plaimtiff

Dalvit could not “ever” move back to day shift or

become shift’ supervisor. This meant the end of

Plaintiff Dalvit’s career, at least within Mortimer's

department, according to Patterson-Kachus.

In some of the most striking “smoking gun”

testimony lkely to be heard in a retahation case,

,atterson-Kachus testified that she heard Mortimer

explain why he was taking the above adverse actions

against plaintiffs As to Plaintiff Dalvit, Mortimer

said, “I hate her.” He also said his actions against

plaintiffs were because “he was unhappy because of

the discrimination. ...” By that, Mortimer expressed

being unhappy’ with plaintiffs’ discrimination

“complaint.” Mortimer specifically referred to

plaintiffs’ complaint of discrimination, their complaint

that plaintiffs were not being treated the same as male

coworkers

Mortimer then cemented his vindictive orders

against plaintiffs, commanding (to his assembled

manapers behind closed doors) that plaintiffs "would

not be chunying shifts." He also told participants in

one management meeting, “when they come back from

their suspension, they would not be receiving any

"

fu VOrs.

Patterson Kachus came to plaintiffs' defense, but

Mortimer said “that we would not be doing anything to

help either one of them [Dalvit and Benjamin|].” This

and other statements discussed supra_ constitute

smoking gun statements of retaliatory animus, the

strongest form of evidence in retahation law.

A “LETTER OF COUNSEL" WAS THEN

PLACED IN PLAINTIFFS' FILES; rT

CONSTITUTES AN ADVERSE

EMPLOYMENT ACTION THAT MUST

BE DISCLOSED FOR FIVE YEARS

WHENEVER THEY APPLY FOR

PROMOTIONS.

Mortimer then informed other managers that there

was a letter placed in plaintiffs’ files -- "a letter of

counsel," according to an HR manager [Nelli], who saw

the file. A “letter of counsel" is “to change behavior

prior to discipline." It was Mortimer himself who told

Nelli about it

The letter was to remain ‘in the plaintiffs’ files for

five years, a United HR’s representative testified. She

testiMed that “it would be on record, and it could then

lead into a form of discipline. .

But Mortimer then expanded the impact of the

letter. He point-blank informed plaintiffs that for the

next five years they would be “on discipline.'

furthermore, Mortimer informed plaintiffs that

they would be required to report the above-described

discipline anytime they applied for a new _ job,

reassignment or promotion

Mortimer informed plaintiffs that for the next five

23

years, 1 they self-nominated for job openings, they

would have to report on the application form that they

were on discipline.

Benjamin: "That was the end of our careers. That

letter censured that we would never get another

position or another promotion or another transfer at

United. That was like branding someone." According

to a top manager for United, such a letter of discipline

was fatal.

BUT MORTIMER DID NOT STOP

THERE. HE TOOK FURTHER

ADVERSE ACTIONS AGAINST

PLAINTIFFS UPON THEIR RETURN

FROM SUSPENSION.

Upon their return from suspension, plaintiffs were

involuntarily removed from the FIT team. Being on

the FIT team was a step forward for advancement in

the company. It was a special position that was a

"feather in your cap." Mortimer told subordinates that

heing placed on the FIT team could be "very good for

your career." Being removed from the FIT team was a

career setback -- a blemish that would halt your career

"until years went by and everyone who knew about it

was gone" Reing on the FIT team "was going to he

good on your resume," but being removed from it was a

punishment.

After plaintiffs were removed from the FI'T’ team,

three males were added: Paul Jellison, kd Nazarenus

and Rich Dolin. ‘This is deducible from the testimony

of a member of the team, Bellopatrick, who listed the

later team members. Plaintiffs' duties were performed

after their removal by Bellopatrick and another male,

I‘reitas. The FIT team supervisor testified that the

first two replacements after plaintiffs were removed

from the FIT team were Paul Jellison and Paul Moris

Both Jellison and Moris are males.

MORTIMER TOOK STILL FURTHER

ADVERSE ACTIONS AGAINST

PLAINTIFFS UPON THEIR RETURN

FROM SUSPENSION.

Mortimer then instructed plaintiffs’ supervisor to

prepare a false performance appraisal, as admitted by

the supervisor herself in her deposition. At a time

when Patterson-Eachus, as plaintiffs’ supervisor, was

to prepare performance evaluations for plaintiffs,

Mortimer instructed her as to what to put into them,

numely “Needs Improvement.” Kven though

Patterson-EFachus did not believe plaintiffs deserved it,

Mortimer directed Patterson-Eachus to put the unfair

“needs improvement” assessment into their

performance evaluations.

Mortimer never gave any reason for instructing

Patterson-Eachus to falsely downgrade plaintiffs’

performance evaluations.

Further raising significant credibility’ issues,

Mortimer testified in his depositions that he did not

provide any input into plaintiffs’ performance

evaluations, directly contradicting Patterson-Kachus.

Thus, Mortimer was, again, grossly forgetful.

23

The inferior performance evaluations directly and

negatively impacted plaintiffs' salary increases at the

y | | y

end of the year.

MORTIMER TOOK STILL OTHER

DISCRIMINATORY AND

RETALIATORY ACTIONS AGAINST

PLAINTIFFS.

Debra Benjamin was then removed from her shift

supervisor job and a male named Sean Huster placed

into it

Plaintiffs were then expressly and secretly

banned by Mortimer from ever becoming shift

supervisors again. This was overheard by Operations

Manager Patterson-Kachus, that plaintiffs were not

allowed to become shift supervisors

The only other female on the FIT’ team -- Denise

Ambrose (now VanDyke) -- also was removed from the

FIT team. This, too, was “directed by Kevin

[Mortimer]," according to the head of the FIT team

himself (Nail). VanDyke was then moved to swing

shift, an undesirable shift; she was told by her boss,

the operating manager (Nail), that this was because of

her mere association with Plaintiffs

Benjamin. Again, VanDyke's movement

undesirable swing shift was Mortimer's doing

Plaintiffs applied for numerous jobs and were not

allowed to be promoted or transferred. Dalvit: "And ]

never heard anything from anybody in the company

about any position that I've ever applied for." All of

26

those job openings were filled, and Plaintiff Dalvit was

aware of the qualifications of the persons who filled

them. Plaintiff was equally as qualified, "If not more."

Note: Among the many jobs for which Plaintiff Dalvit

applied were nine department head positions for which

she was qualified -- but she never got any meaningful

response.

Plaintiff Benjamin applied for a zone controller job,

for which she was qualified, and did not even get an

interview. ‘The person to whom she applied, Bill Aplin,

told plaintiff that Mortimer told him not to consider

plaintiff for the position "because I was on an action

plan." This confirmed the deleterious effect. of an

action plan on one's career at United.

Not only was Plaintiff Dalvit not considered for

transfer or promotion, she was not considered for

movement off the undesirable swing shift. This was

despite the fact that many men had had their shift

requests honored. Plaintiff Dalvit then applied for a

hardship shift change, but Mortimer turned that down

also

Plaintiff Dalvit was then sent to be fueling

supervisor, an unwanted job, "the only female that's

ever been sent to be a fueling supervisor in the last 15

years or more." She was placed in that job "because

either, one, they thought I would quit or, two, I would

fail at it. And I didn't fail at it. And I didn't quit at

it." She was assigned to the fueling position with no

prior experience whereas men assigned there had

worked in fueling before. Of course Plaintiff Dalvit

was removed from her shift supervisor job

Plaintiff Benjamin, too, was then involuntarily

removed from her job as permanent shift supervisor

even as she was requesting different assignments. In

her deposition, Plaintiff Benjamin set forth the names

of many men in comparable positions who recerved

special consideration of their requests for

reassignment, and she described the details of each act

of preferential treatment.

Under the above circumstances, it is objectively

evident that plaintiffs' carcers at United Air Lines

were at an end -- because they were females who dared

to complain about sex discrimination by Kevin

Mortimer

B. Decision of the Court of Appeals

The Tenth Circuit ruled, in pertinent part, that

the trial court did not have jurisdiction to consider

most of the actions taken by Mortimer and United

Air Lines apainst plaintiffs because said actions were

not expressly listed tin plaintiffs’ charge = of

discrimination/retalhation to the KEKOC

The Tenth Circuit also ruled, in pertinent part,

that plaintiffs’ direct observations after many years

working on the ramp at United Air Lines were

inadmissible, and that plaintiffs’ affidavits and

deposition testimony were properly struck by the

trial court. ‘Thus, all of plaintiffs’ eyewitness and

ear-witness testimony was either’ struck or

discounted to zero

265

The Tenth Circuit ruled, in pertinent part, that

plaintiffs had not adduced evidence of pretext

REASONS FOR GRANTING THE PETITION

THE CIRCUITS ARE SPLIT AS TO WHETHER

RETALIATION COMPLAINANTS ARE

RHEQUIRED TO LIST HKACH SPECIFIC

KMPLOYER ACT AGAINST THEM IN THEIR

KEOC CHARGES IN ORDER TO LATER

COMPLAIN ABOUT THOSE SPECIFIC ACTS IN

KE DERAL COURT.

THE CIRCUITS ARE SPLIT AS TO WHETHER

RETALIATION VICTIMS CAN BRING ACTIONS

IN THE FEDERAL COURT AS TO ACTS THAT

WOULD HAVE BEEN ENCOMPASSED WITHIN

THE EKOC INVESTIGATION EVEN IF NOT

SPHCIFICALLY LISTED.

The Tenth Circuit ruled in blanket fashion that

plaintiffs had not exhausted their administrative

remedies with regard to a majority of the adverse

actions taken against them by Mortimer and United

Air Lines, as described supra. In so ruling, the Tenth

Court applied its announced rule that, “each discrete

incident of [retaliatory] treatment constitutes its own

unlawful employment practice for which

administrative remedies must be exhausted.” [erting

Martinez v. Potter, 347 F.3d 1208, 1210 (Oth Cir

2003]. supra, Appendix 14a-15a

Other Circuits have retained the old rule, 1.e. that a

discrimination victim can bring into court not only

those acts expressly set forth in the KEOC charge, but

also those acts that would have been exposed in the

KIEOC's naturally-ensuing investigation. See, Fantini

v. Salem State College, 557 F.3d 22, 27 (Ast Cir. 2009);

Mathirampuzha v. Potter, 548 F.3d 70, 76 (2nd Cir.

2008); Weigel v. Baptist Hosp. of f. Tenn., 302 F.3d

367, 380 (6th Cir. 2002). Indeed, the Sixth Circuit has

ruled that, “where facts related with respect to the

charged claim would prompt the EEOC to investigate

a different, uncharged claim, the plaintiff is not

precluded from bringing suit on that claim.” /d

In the instant case, plaintiffs EHEKOC charge was

expansive in checking “retaliation” and in _ listing

multiple actions against them (all of which were

directed by Mortimer, as discussed supra):

On December 28, 20065, was

suspended from my job as a ramp

supervisor on special assignment and

later removed from the special

assignment as a punishment. I was

then placed on probation, and later a

yr £517

AAA

disciplinary letter was placed in m ;

which has the effect of continuing me on

probation and affecting my employment

for five years. In addition the company

has docked our pay for leaving work

early, treating us lke hourly non

exempt e aployee

As recently as 2007, the Tenth Circuit reiterated its

former rule that victims could sue on employer actions

against them even if not expressly set forth in the

KMOC charge so long as those employer actions would

naturally have turned up in the EHMOC investigation

that would have been triggered by the KISOC charge.

See, Jones v. lU/nited Parcel Serv., Inc., 502 ¥.3d 1176,

1183 (10th Cir. 2007). Indeed, said rule was repeated

in this case, at Appendix p. 14a

However, exposing the split of authority even

within the Tenth Circuit, the appellate court in the

instant case then apphed the contrary and

contradictory rule that “each discrete incident of

lretaliatory] treatment constitutes its own unlawful

employment practice for which administrative

remedies must be exhausted.” /d

Again, this new rule directly contradicts ample case

law from the Tenth and other Circuits, as discussed

supra

There is an expanding pattern throughout the land

of limiting the access of victims of discrimination and

retaliation to the federal courts ‘This 18 no doubt

because of the crush of such cases in the federal court

The Tenth Circuit has been especially active in seizing

upon novel legal devices to grant summary judgment,

and the above is one of them

If the Tenth Circuit ruling in this case 1s not

overturned, it will be cited hereafter throughout the

land, and victims of discrimination and retaliation will

be further constrained to list every minor action

against them in their HKHOC charges

the federal courts will be further eroded

It is important to note that this new ‘Tenth Circuit

rule for retaliation cases whipsaws victims between 1

and another rule of law that the Tenth Circuit ha:

previously invoked to grant summary judgment in

hundreds of cases. That rule limits the definition of

“adverse action” about which victims are permitted to

complaint to the KEOC in the first place. The Tenth

Circuit has severely carved down what constitutes an

“adverse action’, ruling that most adverse actions

short of demotion or termination, or that don’t have a

concrete Impact upon compensation are LOO

Insignificant to bother with unde! federal

discrimination laws

Moreover, the Tenth Circuit, and other courts, have

evolved an analytical method in which they try to

strike each individual adverse action by the employer,

one by one, without considering them within the

context of the entire array of actions apainst the

victim. That is precisely what the Tenth Circuit did in

the instant case.

In the instant case, and given the breadth of the

KEOC charges, there can be no doubt that the EEOC’s

investigation would have reached and exposed all ol!

Mortimer’s actions as described herein. Indeed, they

were EEOC charges of, not just discrimination, but

retaliation, which highlighted a plethora of retaliatory

acts (all by Mortimer). Moreover, the array of actions

by Mortimer was not confined to the past tense

Plaintiffs also highlighted the impact upon thei

careers into the future — as well as the impact of past

events upon future events “I was then placed on

probation, and later a disciplinary letter was placed in

my file, which has the effect of continuing me on

probation and affecting my employment for five

Again, as a matter of either plain or legal logic, the

KKOC charge would have naturally produced an

investigation of all of the retaliatory acts by Mortimer

including the multiple impacts of the five years of

probation. The ‘Tenth Circuit's new rule would obviate

said former test and require that each “discrete act" be

listed in the IK HOC charge

THE TENTH CIRCUIT HAS OBVIATED

APPLICATION OF oR OE 701 IN

DISCRIMINATION/RETALIATION

CASES.

Among the new legal devices that the Tenth Circuit

is employing to dismiss discrimination/retaliation cases

and no other kinds of cases is to ignore the

application of F.R.E. 701 to discrimination cases. Thus,

the Tenth Circuit in this case affirmed the striking of

plaintiffs’ entire affidavits in opposition to summary

judgment, finding that they contained “conclusory,

unsubstantiated statements.”

I R.E. 701 authorizes the testimony of a lay

witness “in the form of opinions or inferences’ that

‘

‘are (a) rationally based on the perception of the

witness and (b) helpful to a clear understanding of the

witness‘ testimony or the determination of a fact in

issue.” See, Gossett v. Oklahoma ex rel. Board of

Regents for Langston University, 245 ¥.38d 1172, 1179

(1Oth Cir. 2001)

Yet, the Tenth Circuit is now obviating that rule of

law in discrimination cases, even when the victims of

discrimination have observed the employer's practice:

first-hand for years

ii]

THI TIGNTH CIRCUIT IS NOW

lMRRONHOUSLY REQUIRING "SUBSTANTIAL

MWVIDlEeNcCl" Ok PRETHAT BleorORIT

PIRMIEEPTING DISCRIMINATION CASES ‘TO

GO TO THE JURY

This petition presents intertwined issues (e.g

lpmitation On) SCOpPe of the | 1 © charpe, and

appheation of EFLR A 7O1) to eliminate’ vahd

discrimination/retaliation cases ~- apainst a backdrop

in which it is patent that the trial court viewed most

of the summury judgment evidence in a hght most

favorable to the non-movant, in violation of Rule 56

summary judgment procedure. The Tenth Circuit

impheitly and/or expressly approved said analysis

and did sc in a particularly egregious case olf

retahation involving rare “smoking gun’ statements

of retaliatory animus by Mortimer himself, witnessed

by his most senior managers behind closed doors.

Thus, the trend in the Tenth Circuit is to delimit

or ignore powerful evidence (and also reasonable

inferences therefrom) related to the analysis of

pretext, as approved by Heeves v. Sanderson

Plumbing, fnc., 530 U.S. 133, 120 S.Ct. 2097, 147

L.e&d.2d 105 (2000). The trend demonstrates

mcreasingly divergent opimions of the Circuits and

the encroachment of a new and tougher standard for

proof of pretext solely for discrimination and

retaliation victims. I[t is not the same standard that

applies to other civil cases involving circumstantial

evidence The opinion below conflicts with this

Court's prior decisions and represents a de facto new

standard when circumstantial evidence of pretext 1s

presented in discrimination/retaliation cases

likewise, the Kight and Ninth Circuits have

tuken the same path, to the extreme, with a

heightened level of evidentiary proof being required

to show pretext but only in discrimination cases

Said Circuits have established a standard that a

showing of pretext can be made only by direct

evidence or by “specific and substantial" or

"substantial" circumstantial evidence. See, Cornwel/

Vv. Klectra Cent. Credit Union, 439 F.3d 1018, 1029

(9th Cir. 2006); Bodett v. CoxCom, Inc., 366 F.3d

736, 743 (9th Cir. 2004); Manatt v. Bank of America,

NA, 339 F.3d 792, 803 (9th Cir. 2003); Stegall v

Citadel Broadcasting Co., 350 F.3d 1061, 1066 (9th

Cir. 2003); Bergene v. Salt river Project Agr. mp

and Power Dist., 272 ¥.3d 1136, 1142, (9th Cir

7

2001); Godwin v. Hunt Wesson, Inc. 150 F.3d 1217,

1222 (9th Cir. 1998); Cherry v. #itenour School

Dist., 36) F.3d 474, 479 (8th Cir. 2004)

In the seminal case of Godwin, supra, at 1222, the

Ninth Circuit established its own new evidentiary

standard, thereafter followed in scores of lower court

cases, as follows:

In those cases where direct evidence 1s

unavailable, however, the plaintiff may

come forward with circumstantial

evidence that tends to show that the

employer's proffered motives were not the

actual motives because they are

inconsistent or otherwise not believable

Such evidence of “pretense” must be

“specie” and “substantial” in order to

create a tmable issue with respect to

whether the employer intended Lo

discriminate on the basis of sex. lemphasis

added|

Other courts, including the Tenth Circuit, have

implicitly adopted sucha higher level of

circumstantial evidence of pretext required in

discrimination/retaliation cases, as in the instant

case. Thus, plaintiffs herein presented significant,

multi-pronged evidence of pretext including

“smoking pun” statements of retaliatory animus (by

Mortimer himself) -- only to have the trial court and

Tenth Circuit discount it totally by use of certain

new legal analytical devices, as discussed supra

‘This line of cases and the decision in the instant

case run contrary to the requirements of /teeves,

supra, that questions of fact are to be approached the

same in discrimination cases as in other cases. See,

lteeves, at 148

This trend and the instant case erode this Court's

rule of law reiterated in /teeves, supra, that even the

mere suspicion of mendacity will suffice to show

pretext. See, Heeves, at 147. Such a clearly

enunciated standard has been eroded among certain

Circuits, including the ‘Tenth. The new legal

standard, used to scythe hundreds of cases out of

federal court, is to require, either expressly or

implicitly, that pretext may be shown only by

“substantial” evidence and without any F.R Ic. 70]

evidence to be considered

Such a new and toughened standard also cuts

avuinst the reality of discrimination/retaliation

cases, in which "Itlhere will seldom be ‘eyewitness'

testimony as to the employer's mental processes."

‘See, Kteeves, at 141. Such questions are "sensitive

and difficult." /d

They do not deserve a tougher’ analytical

Standard across the nation.

CONCLUSION

‘or the reasons set forth above, it is respectfully

submitted that the petition for a writ of certiorari

should be granted

Kespectflully submitted,

JOHN R. OLSEN

Counsel of Record

OLSEN & BROWN LLC

8362 Greenwood Drive

Niwot, Colorado 80503

(303) 652-1133

Attorneys lor Petitioners

April 21, ZO10

APPENDIX

APPPENDIXA

[Kiled January 26, 2010]

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DAVA DALVIT and )

DEBRA BENJAMIN, )

Plaintitts-AppeHlanis ) No. 08-1283

) I).C. Nos

Vv ) L-O7-CV-725

) 1:O7-CV-726

UNITED AIRLINES, INC. )

Detendant-Appellee )

)

ORDER

Before TACHA, MURPHY, and HARTZ,

Circuit Judges

Appellants' petition for rehearing is denied

Za

The petition for rehearing on ene banc

was transmitted to the judges of the court who are

in regular active service. As no member of the

panel and no judge in regular active service on the

curt requested that the court be polled, that

petition 1s also denied

lCntered for the Court

Mlisabeth A. Shumaker, Clerk

APPPEIEENDIA B

NOT SELECTED FOR PUBLICA'TION

[kiled December jay 2009]

UNITED STATES COURT OF APPEALS

FOR TH TENTH CIRCUTI

DAVA DALVII and )

DEBRA BENJAMIN, )

Plaintif{fs-Appellants, No. 08-1283

J 1).C’. Nos

V ) 1:07-CV-725

) 1:-O7-CV-/26

UNITED AIRLINES, IN¢ )

Defendant Appellee )

)

° This order and judgment is not binding, precedent

except under the doctrines of law of the case, res

judicata, and collateral estoppel. The court generally

disfavors the citation of orders and = judgments

nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3

sefore TACHA, MURPHY, and HARTZ,

Circuit Judges

Plaintiffs Dava Dalvit and Debra Benjamin sued

United Air Lines, Inc (UAL) asserting

discrimination and retaliation claims under a variety

of federal and state statutes. The district court

granted summary judgment in favor of UAL on all of

their claims. Plaintiffs now appeal the grant of

summary judgment on their discrimination and

retahation claims under Title VII of the Civil Rights

Act of 1964, 42 USC. §§& 2000e to 2000e-17. We

affirm

SACKGROUND

1. Organization of the FIT Team

Pjaintiffs worked as ramp supervisors at UAL !'s

facility at Denver International Airport (DIA). Ramp

supervisors were responsible for various’ tasks

associated with ensuring the on-time departure of

aircraft. They reported to Operating Managers, who

reported to Department Managers, who reported in

turn to the Station Manager

Itamp supervisors were responsible for working an

eight-hour day and for certifying their hours worked

using an automated “pay certification” process. £N! If

they left early before completing an eight-hour day,

they were required to inform an Operating Manager

before leaving. for hourly exceptions such as

arriving late or leaving early, they were expected to

handwrite the exceptions on their pay certifications

There 1s some question about how strictly the pay

‘

»> a

certification process was enforced. Winle UAL’'s

policies do not permit supervisors to certify that they

have worked an eight-hour day when they have not

done so, plaintiffs assert that male supervisors did so

at times without penalty.

In late 2005, UAL began assembling a temporary

“FIT Team” at DIA. As initially constituted, the FIT

Team included three women-both plaintiffs and one

other female ramp supervisor-and three male ramp

supervisors. The purpose of the FIT Team, whose

initials stood for “fix, improve, transform,” was to

improve performance on the ramp.£N2 Appointment

to the FIT Team was not considered «a promotion, but

Kevin Mortimer, UAL's Department Manager of

Ramp Services, did tell at least one member of the

FIT Team that it would be advantageous to his

carecr development to be part of the team

The FI'l ‘Team met for the first tume on November

28, 2005. At this meeting, Steve Nail, who was

overseeing the team, set out his expectations

concerning working hours for team members. He

stated that there would not be any pre-determined

start or finish times for their shifts, and that team

members could work a flexible schedule, with some

days shorter than eight hours, and some days longer,

so lonp as they completed all their required tasks

‘Team members were, however, required to keep him

informed as to what shifts they would be working

Plaintiff Benjamin asked Nail, in Rent of their

flexible hours, how FIT’ Team members’ were

supposed to “cert” their time. He said he would get

clarification for her on that issue, but he never did.

Benjamin admits that while working as a member of

6a

the FIT Team, she turned in pay

certifications showing that she had worked eight

hours on some days when she _ had _ not Pay

certification was complicated by the fact that the

certification schedules were no longer handwritten

and she couldn't write in her actual time on the

certifications as she had previously done. Instead

Benjamin kept a log of her actual hours on the

computer. She did not’ provide this’ log to

management

Plaintiff Dalvit testified that while she was on the

KIT’ Team, work start times were flexible and

sometimes she left early. She did not tell anyone on

occasions when she left early. As she understood it

communication about leaving early was not expected

of Team members

2. Inttial Investigation of Plaintilfs' ‘Vime

Certifications

In December 2005, shortly after the FIT ‘Team was

assembled, two Operating Managers, Steve Peters

and ‘Terry Schenck, expressed concern to Nail that

plaintiffs may not have been working full, eight-hour

shifts. Nail asked if the men had any evidence. They

rephed that they did not

Around the same time, Nail assigned plaintiffs to

attend a 5:00 a .m. briefing to explain the purpose of

the FIT’ Team to other supervisory employees. When

Nail later asked Peters how the briefing had gon

Peters had no idea what he was talking about. Ii

told Nail that plaintiffs had not attended the bricfing

and had not discussed the FIT Team as ordered

la

Nail took his concerns about plaintiffs’

attendance to his immediate supervisor, Mortimer

and asked him for guidance on how to deal with the

situation. Mortimer told Nail to check plaintifts'

“badge histories’ to see what they showed about thei

attendance. Nail obtained from the City and County

of Denver records showing plaintiffs’ entry and exit:

from the secure areas of DIA and their entries and

exits from the employee parking lots at DIA (referred

to in the record as plaintiffs’ “rings’). He then

preparcd spreadsheets using these records

summarizing plaintiffs' access card use for December

2005. The records and spreadsheets revealed that

plaintiffs had failed to work an eight-hour day on

some of the days they had certified that they had

worked eight hours

Armed with these records and spreadsheet

Mortimer approached James Kyte, UALs‘s Station

Manager at DIA, and asked him for advice. Kyt

determined that an investigation was warranted. H«

selected Jean Massey, Department Manager of

Facilities and Ground Equipment Maintenance, a

department completely separate from Ramp

Services, to conduct the investigation. He felt that

Massey would bring an unbiased perspective to the

situation

3. Viassey's investigation

Massey examined the plaintiffs’ DIA rings and th

spreadsheets Nail had prepared. On December 28

2005, Massey and Nail met separately with each

plaintiff to discuss the investigation. Massey advised

plaintiffs that she wus conducting an investipation

into discrepancies between the hours recorded on

their pay certification and their arrival and

sa

departure records. She showed them their DIA

rings. Plaintiff Dalvit responded that they were part

of a special assignment team and had flexible hours

Massey replied that she was not concerned about the

days when plaintiffs worked late, only the days when

they went home early but turned in certification:

showing that they had worked a full day

Massey then confiscated plaintiffs’ access badges

and sent them home. The decision to send plaintiffs

home was Massey's. Massey later told plaintiffs they

could submit information to her to be considered as

part of the investigation

The investigation continued. Massey discussed the

problem of hours for FIT ‘Team members with Nail

He told her that he had told members of the Team

that they would have flexible hours but that they

were to work eight and a half hours each day

Massey spoke to other ‘Team members. They told her

that they understood trom Naul's directives that they

were allowed to work more or fewer hours in a day

than an eight-hour — shift While Massey was

conducting her investigation, plarntilfs contacted

other FI'T ‘Team members to obtain statements from

them about the Team's flexible work schedule:

1. Plaintiff." Complaint of Sex Discrimination

\fter they were suspended plaintiffs contacted

Gary Thomas, a human resources generalist at

UAL 's Chicago headquarters ‘They complained that

their suspension was discriminatory. Jeanne Nelli of

Human Resources (HR) volunteered to come to

Denver to conduct an investigation. But plaintiff:

never followed through by filing a formal complaint

Oa

of discrimination with UAL as a result, Nelh

ceased her investigatory efforts

5. Results of the Investigation

On January 14, 2006, Massey and Mortimer met

with plaintiffs. During this meeting, Massey gave

Plaintiffs formal Letters of Counsel that summarized

her findings. In the Letters of Counsel, she stated

that there was insufficient evidence to conclude that

either plaintiff had falsified company records. But

she further stated that plaintiffs’ conduct’ during

their assignment to the FIT’ Team and during the

investigation had caused Massey to question their

leadership abilities at UAL. She had two concerns

First, plaintiffs had left early on numerous occasions

without obtaining authorization from an Operating

Manager. Second, they had failed to “respect the

investigative process” by “callling] other supervisors

to solicit statements from them.” ApIt.App., Vol. II at

245. 217

Massey's letters informed plaintalfs that UAL wa:

taking the following actions against them. First, they

would be removed from the IIT Team and returned

to the shifts they were on prior to their participation

in the ‘Team. Second, they were to be placed on a

ninety day action plan. ‘The letters warned them that

«fe

(Gailux .k> guocessfulle rmyoet the ewnectation

outlined in that action plan will Jjead to discipline up

to and including discharge.” /d. In addition, the

Letters of Counsel would remain in) plaintiffs’

personne! files for five years and would have to be

disclosed when they apphed for other positions

Within UAL. When plaintiffs returned to work on

January 23, 2006, they were puid in fuli for the time

they were held out of service. After pursuinpy ther

lOa

administrative remedies with the qual

Mmployment Opportunity Commission (KEOC), they

filed this sunt

ANALYSIS

1. Bankruptcy Discharge

outset, we are confronted with UAL's

argument that since all of plaintiffs’ claims were

discharged by the 2006 confirmation of its Chapter

1] bankruptcy in the Northern District of Illnois,

the district court lacked subject-matter jurisdiction

to entertain the claims on the merits.'3 Although

the parties devoted nearly 400 pages of district court

briefing and exhibits to the bankruptcy discharge

issue, the district court dismissed UAL 's argument in

footnote, stating that it was not persuaded by the

argument. [t ec ncluded that it had jurisdiction to

address the merits of UAL's summary judgment

motion. Aplt.App., Vol. XII at 1364 n. |]

In our view, the bankruptcy discharge issue is far

from siample.t™4 ‘To begin with, it remains an open

question whether such a discharge operates as a

jurisdictional bar to suit or is merely an affirmative

defense that can he waived !£2 If the discharge 1s

jurisdictional, fundamental adjudicative’ principles

required the district court to resolve the discharge

issue before proceeding to the merits of plaintiffs’

Tithe VII claims. See generally Steel Co. v. Citizens

for a Better hav't, 523 U.S. 83, 94-95, 118 8.Ct. 1008,

140 J, Ekd.2d 210 (199%) Cholding federal court may

not decide cause of action before resolving existence

of Article JJ] jurisdiction). To further complicate

matters, even assuming that such a discharge was

jurisdictional factual issue: remain concerning

lla

whether the discharge here applies to plaintiffs’

Claims. Plaintiffs contend that at least some of their

Claims accrued after the bankruptcy was confirmed

and that they received inadequate notice of the

confirmation, factors that could preclude apphcation

of the discharge to at least some of their claims.

Fortunately, we need not resolve these thorny

ssues. liven if UAL's bankruptcy discharge created a

jurisdictional bar to plaintiffs’ claims, an exception to

the general rule that jurisdictional issues must be

addressed before consideration of the merits allows

us to affirm the decision of the district court. Under

what has been called the “foreordained” exception, a

court may rule that a party loses on the merits

without first establishing jurisdiction if the merits

have already been decided in the court's resolution of

a claim over which it did have jurisdiction. Starkey

ex rel A.B vo Boulder County Soc. Servs. 569 F.3d

1244, 1259-61 OOth Cir.2009) (citing Steel Co., 523

U.S. at 98-100). In such cases, the court is “not

producing un advisory) opinion if as merely

parroting a prior decision.” /d. at 1260. As it turns

out, due to the nature of the claims in plaintailfs'

complaint, we may reach certain claims

notwithstandiny the bankruptcy discharge. Provided

that the claims subject to the bankruptcy discharge

depend on the same factual and legal predicates as

ai i. ope : eur T, 7 “<4 .

PaO Tel &: Cialis vel which {ha faderal courts

unquestionably have jurisdiction, we may then

dispose of the allegedly discharged claims as well

In their complaint, plaintiffs asserted claims for

both damaves and equitable relief. Specifically, they

sought the following forms of equitable relief: (I) a

declaratory judgment declaring that UAL violated

l2a

Tithe VII; (2) removal of disciplinary actions and

notations from their files; and (3) promotion or a new

job assignment. Dalvit's claims for promotion or a

new job assignment and for removal of disciplinary

actions from her UAL file have arguably been mooted

by her departure from UAL.FN® All of Benjamin's

equitable claims remain pending

(Claims for equitable rehef are dischargeable under

the bankruptcy code if they can be “reduced to a

monetary obligation.” Ofuo v. Kovacs, 469 U.S. 274,

282, 105 S.Ct. 705, 83 L.Fd.2d 649 (1985). That is,

such claims to be discharged must involve “a right to

nayment.” 11 U.S.C. § 10105). Included within a

discharge are equitable claims that can be viably

replaced with an alternative remedy involving a

right to payment. See yvenerally Federford v. US

Airways, Inc., 586 ¥.Supp.2d 47, 51-53 (D.R.I.2008)

(analyzing equitable claim for reinstatement under

Americans With Disabilities Act and concluding

claim involved right to payment and was thus

discharged in defendant's bankruptcy). The reverse

is also true: equitable remedies, such as a request for

prospective injunctive relieif, may survive the debtor's

discharge if not reducible to a monetary obligation

Kovacs, 469 U.S. at 284-85

Menjamin's claim for “removal of any and all

disciplinary actions and notations in [her personnel]

files,” Aplt.App., Vol. I at 13, 29, has no monetary

equivalent. We therefore conclude that at least one of

Benjamin's equitably-based claims is justiciable,

irrespective of UAL's bankruptcy discharge. We wil!

proceed to adjudicate the summary judgment issues

as to that claim. ‘The results of that adjudication may

then foreordain the fate of both plaintiffs’ remaining

13a

claims, notwithstandiny any

unresolved issues concerning UAL's’ bankruptcy

discharge, provided that the legal and factual issues

we have resolved conclusively dispose of those

involving their other claims

2. Standard of Review

We review the district court's grant of summary

judgment de novo, applying the same standard as the

district court. Pinkerton v. Colo. Dep't of Transp.,

563 F.3d 1052, 1058 QOO0th Cir.2009). Summary

judgment is appropriate if “there is no genuine issue

as to any material fact and ... the movant is entitled

to judgment as a matter of law.” Fed. R.Civ.P. 56(c)

In making this determination, we “exumine the

record and all reasonable inferences that might be

drawn from it in the light most favorable to the non

moving party.” Pinkerton, 563 F.3d at 1058 (citation

omitted). “At this stave, [c]lredibility determinations,

the weighing of the evidence, and the drawing of

Jegitimate inferences from the facts are jury

functions, not those of a judge.... he evidence of the

non-movant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Jd

(quotation omitted). But “[wlhere the record taken as

a whole could not lead a rational trier of fact to find

for the nonmoving party, there 1s no ‘genuine issue

for trial. ~ /d. (quoting Matsusiuta lec. fidus. Co. i

Zenith kadto Corp., 475 U.S. 574, 587, 106 S.Ct

1348, 89 L.Ed.2d 538 (1986)).

3. District Court's Striking of Plaintiffs’ Summary

«2

Judgment Affidavits

In opposition to UAL's motion for summary

judgment, plaintiffs submitted personal declarations

14 a

replete w ith mnadmissible hearsay and

speculation. The district court granted UAIL.‘'s motion

to strike them, finding that they primarily contained

cumulative information and conclusory,

unsubstantiated statements. Generally, “a court will

disregard only those portions of an affidavit that are

inadmissible and consider the rest of it.” Casas Office

Mach., Inc. Mita Copystar Am., Inc., 42 1°.3d 668,

682 (ist Cir.i994). Here, however, plaintiffs raised

no issue concerning the district court's decision to

strike their declarations in their opening brief on

appeal. We therefore consider the issue waived, see

Bronson v. Swensen, 500 F.3d 1099, 1104 (lOth

Cir.2007), and affirm the striking of plaintiffs’

declarations in their entirety

4. Claims Not Included in EIKOC Charge

Before reaching the merits of Benjamin's

equitably-based claim for removal of disciplinary

notations m her personnel file, we will address the

district court's dismissal of plaintiffs’ claims based on

alleged retahation after their reinstatement

“Iexhaustion of administrative remedies iS A

jurisdictional prerequisite to suit under ‘Title VII.”

Jones v.. Runyon, 91 F.3d 1398, 1399 QOth Cir

1996) AN! “A plaintiff's claim in federal court 1s

generally limited by the scope of the administrative

Investigation that can reasonably be expected to

follow the charge of discrimination submitted to the

MOC.” Jones v. United Parcel Serv., /nc., 502 .3d

1176, 1183 (Oth Cir.2007) (quotation omitted).

UJnder this rule, “each discrete’ incident of

retaliatory) treatment constitutes its own unlawful

employment practice for which administrative

remedies must be exhausted.” Martinez v. Fotter,

1S a

347 F.3d 1208, 1210 (10th Cir.2003) (quotation

omitted).

Prior to filing this lawsuit, each plaintiff filed a

charge of discrimination and retaliation with the

KMOC. These charges described the personal harm

resulting from UAL's actions as follows

On December 28, 2005, I was suspended from my job

as a ramp supervisor on special assignment and later

removed from the specal assignment as aA

punishment. | was then placed on probation, and

later a disciplinary letter was placed in my file,

which has the effect of continuing me on probation

and affecting my employment for five years. In

addition the company has docked our pay for leaving

work early, treating us like an hourly non-exempt

employee, but failed to pay overtime for working late,

treating us like a salaried exempt employee. This

difference in pay structure is a violation of the uur

Labor Standards Act [FLSA] and impacts females

more than males

Aplt.App., Vol. V at 501, 504_&Né

Plaintiffs complain of numerous adverse actton:

not described in their HOC charge that allegedly

occurred after they returned from suspension. in

wary QOOE San Aplt (Inening ity at H6-40

Although these actions were included in therr first

amended complaint, they did not exhaust their

administrative remedies concerning these adverse

“.

&7 4A BA

actions prior to bringing the complaint.?82 ‘The

district court therefore properly concluded that it

lacked jurisdiction to consider discrimination and/or

retaliation claims based on these incidents

16 a

5S. McDonnell-Douglas Standard

We may now proceed to the adjudication under our

de novo summary judgment standard of Benjamin's

equitably-based — discrimination and retaliation

claims involving the notation placed in her personnel

file. We analyze these claims using the familiar

burden-shifting framework of McDonnel/ Douglas

Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817,

36 1..Fd.2d 668 (1973). Under this framework,

sJenjamin had the burden of initially establishing a

prima facie case of discrimination. Vurner v. Pub

Serv. Co. of Colo. 563 F.3d 1136, 1142 (10th

Cir._2009). To do this, she had to show that (1) she

was a member of a protected class; (2) she suffered

an adverse employment action; and _ (3) the

challenged action took place under circumstances

rpiving rise to an inference of discrimination. 4.4. O

C vy. PVNF LLC, 487 F.3d 790, 800 (Oth

Cir. 2007)

Assuminp Benjamin made her prima facie case,

the burden then shifted to UAL to articulate a

legitimate, non-discriminatory reason for its actions

Zurner, 563 F.3d at 1142. If it did so, then the

burden shifted back to Benjamin to show that UAL

discriminated apainst her on the basis of her gender

fd. She could carry this burden by showing that

UAL's legitimate, non-discriminatory reason was

pretextual, t.e., unworthy of belref. 7d

The analysis for Benjamin's retalation claim 1s

similar, except for the elements of the prima facie

case. To prove a prima facie case of retahation, she

had to show (1) that she eng ged in protected

activity, (2) that UAL took a maternal “adverse

lJa

action against her, and (3) that there was a

causal connection between the protected activity and

the adverse action. See Montes v. Vail Clinic, Inc.,

497 F.3d 1160, 1176 GOth Cir.2007).

6G. Kquitable Claim for Removal of Letter of

Counsel

Benjamin contends that UAL discriminated and

retaliated against her by placing a_ disciphnary

Letter of Counsel in her personnel file. She contends

that this action was discriminatory because men

were not treated in the same way, and retahatory

because it was orchestrated by Mortimer, who had

’ .

retauziatory animus against her because of her

previous discrimination complaints

a. Prima Facie Case

UAL contends that Benjamin has failed to make

out a prima facie case of either discrimination o1

retaliation, because Letters of Counsel do not rise to

the level of an “adverse employment action.” The

consequences of UAL's Letters of Counsel in general

and those issued to plaintiffs in particular are hotly

disputed and there is significant factual dispute in

the record concerning their effect

“a, ws)

aAa 4

used to weed out candidates for promotion or job

change. The letters were discipline and would remain

in plaintiffs' files for five years, poisoning their

chances for advancement. Benjamin testified she was

told that she would not be interviewed for jobs at

UAL. because of the disciplinary letter in her file. /¢.,

Vol. Ill at 364. Rhonda Patterson-EKachus, another

13a

supervisor at UAL, confirmed that the effect

of the letters in plaintiffs' files was that they would

have no further advancement at UAL under

Mortimer's supervision

Mortimer provided an entirely different

perspective on the letters. He stated that he did not

consider them a form of discipline. They would have

no effect on an employee's career. Moreover, he

opined that the effect of these particular letters was

mitigated by the fact that they explicitly stated that

there was no evidence that plaintiffs violated UAL 's

rules

Jeanne Nelli from HK testified that a Letter of

Counsel is not a form of discipline. Rather, it 1s

designed to change behavior before discipline is

imposed. In her affidavit, she stated that Letters of

Counsel do not limit an individual's ability to be

hired for other positions at UAL

Although the facts are disputed, we wall assume for

summary judgment purposes that Benjamin has

made out a prima facie case olf discrimination and

retahation in connection with the placement of the

Letter of Counsel in her file. We must next ask

whether UAL has advanced a lepitimate, non

discriminatory and non-retaliatory reason for thi

discipline it imposed.

b. UAL 's Legitimate Reasons

UAL's reasons are detailed in the Letter of

Counsel. The Letter explains UAI.'s actions as:

follows

19a

(1) UAL met with Benjamin on December

28, 2005, “to collect information regarding

discrepancies between the hours you recorded on

your pay certification instruments and the clectronic

records of your arrivals and departures at work.”

Aplt.App., Vol. IIT at 215. “At the end of that meeting

you were held out of service pending = an

investigation.” /d.

Massey conducted an investigation within the FIT

Team, and concluded that there was insufficient

information to support a vioiation of UAL’s rule of

conduct prohibiting falsification of company records

or reports

(3) She also concluded, however, that Benjamin

had shown questionable ability as a leader in the

organization. She reaci:ed this conclusion for two

reasons

(a) The electronic records of Benjamin's arrivals

and departures showed that she had left work carly

on numerous occasions without authorization of an

Operating Manager. “In fact, several members of

management and frontline employees noticed your

frequent absence and questioned your assignment

and schedule.” /d. Massey noted that even though

Benjamin was on special assignment, she was

responsible tor notifying her manager when she ieft

work early and for making up the hours

(b) Benjamin was _ notified that Massey's

investigation was ongoing and that she would be

contacting other supervisors. Massey concluded that

Benjamin had “ignored my direction and you called

other Supervisors LO statements irom

them.” /d

(4) Massey removed Benjamin from the FIT Team

but retained her in a supervisory role. She placed he

on the swing shift. She also stated that she would be

placed on a ninety'day action plan and that het

“Iflailure to successfully meet the expectations

outlined in that action plan will lead to discipline up

to and including discharge.” /d

Benjamin's Pretext Arguments

(JAl. thus” provided == non-discriminatory non

retaliatory reasons for its actions in the Letter

Benjamin seeks to have removed from her file:

Benjamin contends that these explanations are

pretextual, however, for the following reasons

(1). Mortimer's Participation

Mirst, and generally, Benjamin contends that

Mortimer was openly sexist with female employees

in general and personally angry with her for makin;

allegations of discrimination with UAL's personnel

department His discriminatory and = “retaliatory

animus, she claims, caused him to orchestrate the

actions taken apuinst her that are reflected in the

lLetter of Counsel

‘The record does not bear out the contention that

Mortimer orchestrated the adverse actions taken

against Benjamin. ‘The evidence shows, rather, that

it was Massey who made most of the decisions of

which she now complains. Benjamin attempts to use

the fact that Massey often communicated

findings to Mortimer during the investigation

‘la

sought his approval or authorization as well a:

that of other supervisors for the actions’ she

proposed, to suggest that she was a sort of puppet

whose strings he pulled to mastermind her downfall!

But the record docs not support this theory

Benjamin contends that Mortimer “triggered” the

investigation into her working hours gut the

uncontroverted evidence shows that Mortimer asked

Nail to investigate only after Nail reported to him

concerns from co-workers about plaintiff

attendance. Benjamin also complains that Mortimer

knew that Nail had no evidence of wrongdoiny at the

time Nail brought these concerns to him. But, a:

Mortimer explained, it was precisely the lack of hard

evidence, coupled with Naul's expressions of concern,

that prompted him to have Nail investigate and look

at plaintiffs' badge histories, to determine the fact

based on objective evidence

After Mortimer brought it to Kyte's attention that

there were individuals who were not working theu

full shifts, Kyte recommended to Mortimer that hi

employ another department manager to conduct the

investigation. Kyte recommended Massey to conduct

the investigation, because she was unbiased.t!

Mortimer followed Kyte's recommendation

Massey testitied that it was her decision to send

Benjamin home during the investigation.-%!4 Jeff Gill

agreed to this. She also told Mortimer of her decision

She also informed Mortimer she was going to send

Benjamin home without pay.£%!2 She conferred first

with Gill “to make sure that we'd been consistent in

the past with what wed done with ithe

management employee ld., Vol. Vi at 599. Thi

)

}

record thus makes if clear that it was Massey

not Mortimer, who decided to suspend Benjamin

pending the investigation.“

Massey then conducted the investigation. Nail

provided her with information about working hours

and reporting requirements for the FIT Team

Mortimer was not involved in the investigation. At

the close of her investigation, Massey determined

that Benjamin would be brought back to work

Massey drafted the Letters of Counsel and asked

Mortimer to prootread them. He made no changes to

the Letters

lt was Massey's suggestion, approved by Kyte, Guill

and Mortimer, to remove Benjamin from the FI’

Team. While Kyte, Gill, and Mortimer approved o1

agreed with this course of action, she did not discuss

the decision with Mortimer beforehand and he did

not provide input about if

senjamin claims Mortimer placed her ona ninety

gay action plan. But the evidence she cites shows

only that Mortimer informed her new supervisor,

Patterson-Kachus, that she would be placed on the

plan. /d., Vol. IV at 388 (depo. p. 8). It was Patterson

lttachus's responsibility to draw up th plan

Mortimer did not tell her what to put init. /d@. at 387

$8 (depo. pp. 8-11). Although she gave it to Mortimer,

he did not comment to her about it. /d at 3892 (depo

©'7) FN}4

p. «

Benjyamin complains that it was Mortimer who told

her that the Letters would stay in her file for five

years Hut the evidence shows that thie five-yeal

y

requirement Was (JAI. policy,

Mortumer's personal decision. /d, Vol. IV

(Jeanne Nelli depo. pp. 58-59)

Benjamin further asserts that it was Mortimer

who decided that the Letter constituted a form of

“diseipline” and that she would have to disclose that

she was “on discipline” when applying for other jobs

at UAL. If Mortimer made such a statement to her,

however, it was in contravention of UAL policy. See

Aplt.App., Vol. VI at 589-90 (Nelli affidavitd

Morcover, any actual denial of employment

opportunities based on Mortimer's interpretation Jie:

beyond the scope of Benjamin's MOC complaint

In sum, the evidence and reasonable inferens

therefrom, taken in the light most favorable to

Senjyamuin, fails to support her theory that Mortime,

masterminded and instigated a campaign = ol

discrimination and retahation against

culminating ain the :Lte of Counsel and

discipline imposed in and in accordance with it

Benjamin's contention that. Mortimer's involvement

mi thi disciplinary process demonstrate: pretext

feaal

<

Weesion to Suspend Benjamis

Benjamin rit > contends that h - On Wa

~proundles: Aplt. Opening Br. at 13. 5 claim:

that the parking Jot arrival and departure record:

established that she had worked eiphty hours every

two weeks, and that this was all UAL required. Shi

supports thi contention with an out-ol context

misreading of UAL's response to her HWOC charge

SCe0L iat (qquotiny {[ pi App Vol Val 509)

24 a

UAL Ss iO response states that UAL.

had “frequent reports concerning Benjamin's

absences, Aplt-App., Vol. Vat 508, and_ that

investigation by Massey established that she had left

work curly on numerous occasions but certified that

she had worked full days, see id. Massey then began

an investigation to determine whether Benjamin had

in fact falsified company records. In the course of this

investigation, Massey found that Benjamin's arrival

and departure records indicated that she had left

work early, while certifying that she had worked a

full eight-hour day. As the investigation continued,

Massey learned from FIT Team members that they

understood that work hours were ‘flexible’ in that on

occasions when members of the team might work less

than & J/2 hours per day, there would be other

occasions [when] they would be required to work

more than & 1/2 hours per day, but the expectation

was that team members worked at least 60 hours in

a two week pay period.” /d at 509. Thus, the “&O

hour’ requirement came from Massey's interview of

Team members and their understunding of the II]

‘bream requirements Nothing mM UAL S lehOc

response, however, indicates that it was UAL 's policy

that Benjamin was free to work whatever schedule

she liked, without notifying anyone, so long as she

worked cighty hours 1n a pay period

(3). Length and Conditions of Suspension

As the Letter of Counsel! notes, UAI. suspended

Menjamin on December 24%, ZO005 and she was not

reinstated to duty until January 23, ZO06. Benjamin

argues that UAL kept her on suspension for the full

four WEEKS because She complained about

discrimination during the suspension. She further

contends that UALJ's justification, that 1t was

La

conducting an investigation of her work

hours during this time period, is pretextual because

WAI. knew from witnesses within a week that hours

on the FIT ‘Team were flexible and that she had

therefore done nothing wrong. Benjamin contends

that once Massey obtained this knowledge from the

witnesses, she should have been immediately

reinstated

senjamins contention that the length of the

suspension was retahatory cannot survive summary

yudyment. I'irst, she did not contend in the district

court, or in her opening brief in this appeal, that

Massey knew of her discrimination complaint to HR

in Chicago during her suspension.£142 The district

court specifically found that it was undisputed that

Massey did not know of the discrimination complaint

until this suit was filed. Aplt.App., Vol. AII at 1386

n. 13. Benjamin docs not challenge this finding in

her opening brief in this court. It was Massey who

chose when to bring her back from suspension, and

3enjyamin has failed to demonstrate that she had any

reason to retaliate apainst her £116

Benjamin has also failed to show that UAL!

explanation for the length of the suspension wa

pretextual. Keparding the three to four weeks it took

to brmny Benjamin back from suspension, Massey

stated

J don't belheve that that's a lony period of time when

you're tryinyv to you're in a middie of a holiday

season, you have different work schedules, and just

reviewing all the facts and trying to do a complet

Investigation and revicwing everything with Hk, I'm

not sure that ! ayree that that's a long pe riod of time

VAS al

Aplit App : Vol

Massey conducted her investigation by speaking to

(JAl. employees during the first week that Benjamin

was on suspension. Between the time she finished

these interviews, sometime during the first week of

January 2006, and the time Benjamin was called in

and presentea with the Letter of Counsel, on

January 18, 2006, only two wecks elapsed. During

this time, Massey had to decide on the discipline to

be imposed, consult with her superior Kyte and

others involved, and draw up the Latter

UAL's response to Benjamin's HiMOC complaint

further explains Lhat “fulltimately, it Wat

determined that there may have been some confusion

regarding the FIT team members' schedules. /d.,

Vol. V at 509. Benjamin fails to show that in a case

Involving such confusion and the employer's

perceived need for a complete investigation, that the

delay in returning her from suspension was_ so

excessive that UAL’s explanation should he

considered a pretext for retahation

Benjamin also complains that she was singled out

being suspended without pay Sut Massey

tified that she specifically checked with UAL's

human resources department to make sure that

uspension wilhout pay was consistent with UAT, 's

isual practice Senjamin fails to show that thi

xplanation is unworthy of behe!

1) Massey's Decision Concerning Wronprdoing

Benjamin conte nds that since Mass« y ultimately

at she had committed no wrongdoing, the

Wee

~~ Fae

21a

justifications UAL, advanced for the

discipline imposed on her in the Letter of Counsel

are unworthy of behef. In her deposition, Massey

testified that she had found no “indications or

evidence of any wrongdoing” by Benjamin. /d., Vol.

IV at 419 (depo. p. 21).°%17 Reading further in her

deposition, however, she explains that although

senyamin had not violated a rule or policy of UAL,

UAL took action to remove her from the FIT Team

because her actions called into doubt her “credibility”

as a member of the Team. /d. at 421 (depo. p. 40)

Massey acted consistently with this

understanding. She reinstated Benjamin to her

employment as a supervisor and arranged for her to

be paid for the time she had been suspended. The

Letter of Counsel, signed by Massey herself then

explained that some additional actions would be

taken against Benjamin because of her questionable

conduct Whether or not these actions seem

warranted to u detached judicial Observer is not the

issue. “The relevant inquiry is not whether the

employer's proffered reasons were wise, fair o1

correct, but whether it honestly believed those

reasons and acted in yood faith upon those beliefs.”

fttvera v. City & County of Denver, 3650 F.3d 912,

924-25 GOth Cir.2004) (quotation omitted). Benjamin

fails to show that Massey's understanding of “no

wrongdoing’ requircd her to avoic imposing the

measures outlined in the Letter of Counsel. Her

conclusion that Benjamin had not violated UALS:

official rules or policies does not demonstrate that

the reasons given for the further actions taken in the

Letters of Counsel were pre textual

(5). Mai Comparator

2% a

Benjamin contends that UAL's reasons are

pretextual because similarly situated male

supervisors and FIT Team members did the same

things for which she was sanctioned in the Letter of

Counsel, without being punished as she was. The

record does not bear out this claim, however

Miussey stated that she spoke with two male Team

members, George Bellopatrick and Jeff Ireitas. Mach

of them told her that he would sometimes work more

or less hours in a day, but that his operating

manager was informed of the hours he was working.

The Letter of Counsel specifically censured Benjamin

for not keeping her managers similarly advised of

her schedule.F8!8 Benjamin claims she was _ not

required to notify her supervisor of her working

hours. But it is UAL's understanding of this

requirement, not hers, that counts. She has not

shown that UAL excused FIT Team members from

communicating with their Operations Manager

concerning their work schedules

senjamin has also failed to show that there were

complaints from fellow employees about other male

manapers as there were about her, or that these

other managers missed a meeting at which they were

scheduled to give a presentation, as Benjamin did

Senjamin makes broad-ranpging claims about a

variety of male supervisors who were allowed to go

home early without chang ng their certifications, see

id?, Vol. WI at 347, but she fails to show that these

men were similarly-situated to her: that is, that they

had the same supervisor or were subject to the same

standards involving performance evaluation and

discipline. See Aramburu_ v. Boeing Co., 112 ¥!.3d

1398, 1404 (10th Cir. 1997)

29 4a

(G6). Benjamin's Failure to Respect the Investigative

Process

One of the reasons given in the Letter of Counsei

for disciplining Benjamin was that she contacted

other supervisors during Massey's investigation and

therefore failed to respect the investigative process

Benjamin contends this explanation 1s unworthy of

belief. She cites her own deposition testimony to

establish that (1) she did not sign a confidentiality

agreement; (2) no one told her not to contact others;

and (3) she thought she had been terminated rather

than suspended and that it was permissible to

contact her fellow employees because there was in

effect no onpoing investigation. This evidence ha:

value in showing pretext only to the extent that it

tends to show that Massey’ statement that

Benjamin failed to respect the investigative process

is unworthy of belief. Benjamin's own, subjective

beliefs about confidentiality are irrelevant

While Benjamin was not asked to sign a

confidentiality agreement, the Letter of Counsel did

not admonish her for failure to adhere to the terms of

such an apreement. Instead, it noted that Massey

had “informed you that the investigation was

(

ongoing and | would be contacting other Supervisors

Yet, you ignored my direction and you called otner

supervisors to solicit statements from them~

Aplt App., Vol. TI at 215. In other words, Massey

concluded that her instruction to Benjamin about the

investigation should have forestalled her from

interfering by conducting her own “investigation

and contacting the same supervisors with whom

Massey intended to speak

sO 4a

While Benjamin contends that she did not

know whether there was an ongoing investigation,

she does not specifically deny Massey's statement

that she told Benjamin she would be contacting other

supervisors. And there is evidence that Benjamin

should have known that the investigation was

ongoing. Plaintiff Dalvit admitted that Massey never

told her that the investigation had been concluded

Id, Vol. I] at 123 (depo. p. 155). She did not recall

Massey saying that she had come to any conclusions

/d. (depo. p. 156). Plaintiff Benjamin stated that she

was told before she was sent home that “We'll get

back to you.” /d., Vol. I at 96 (depo. p. 309). Plaintiff

Dalvit was told she was being sent home “until

further notice.” /d., Vol. Il at 121 (depo. p. 143)

While it would perhaps have been preferable for

Massey to have been more clear with Benjamin

concerning the ongoing nature of the investigation,

and even to have requested her to sign a

confidentiality agreement, her failure to do so doe:

not demonstrate pretext

d. Conclusion

benjamin has fatled to show that UAL 's legitimate

Stated reasons for the discipline imposed upon her

were a pretext for either discrimination Or

retahation. This beimp the cuse, she is not entitled to

the equitable rehef sought of removal of the Letters

of Counsel from her f1le

/. iifect on Remaining Claim

a. Benjamin's Remaining Claim:

In addition to the other forms of equitable rehel

Benjamin soupht that are reducible to monetary

Sl a

terms and thus discharzveable in

bankruptcy, she sought damages including = all

compensation, salary raises, normal performance

reviews, back pay, equal pay, front pay and benefits

that plaintiffs were denied because of defendant's

acts and failures to act, in a sum to be determined by

the court and jury; liquidated and compensatory

damages, including for future pecuniary losses,

emotional pain, suffering, inconvenience, mental

anguish, and loss of enjoyment of hfe, in a sum to be

determined by the court and jury; exemplary or

punitive damages in a sum to be determined by the

court and jury; legal fees, disbursements, expert fees,

. |

and costs of this action land| all legal interest on

sums awarded

Aplt App ; Vol Vill at 855-536

Her remaining claims for legal and equitable relief

damages fail, for the same reasons outlined above in

relation to her claim for removal of the Letter of

Counsel trom her file. Simply put, UAL's legitimate

reasons are the same and our holdinp with regard to

her failure to show pretext for purposes of surviving

UAL's summary judgment motion on the Letter of

Counsel claim apples with the same force to each

and every one of her other properly-exhausted

claims, whether legal or equitable, and whether on

AS ann lear Sara.

6 6uAa

a2s8

’ ' ' ® es ° es

NOU GQisClar pein Ail Hain rupr y

factual basis are essentially undistinguishable. For

this reason, our disposition of the Letter of Counsel

claim. Ove! which we unquestionably have

gurisdiction, foreordains the defeat of all of her othe)

Claims over which jurisdiction is uncertain. See

Starkey, 569 F.3d at 1259-61. Thus, in affirming the

district court's summary judgment disposition of

these claims, we merely parrot our decision as to he:

i2 a

Letter of Counsel claim rather than producing an

advisory opinion. /d. at 1260

b. Dalvit's Claims

A careful review of plaintiffs' appellate briefs and

the entire record on appeal, especially including

plaintiffs’ EMOC charges, their complaints, and the

final pretrial order, demonstrates that Dalvit's legal

and equitable claims are in essential terms identical

in law and fact to Benjamin's. Dalvit's claims for

removal of the disciptinary letter from her file and

for promotion and a new job assignment at UAL have

been mooted by her departure from UAL, and her

claim for conduct after suspension, up to and

including constructive discharge, was not properly

exhausted before the FKEOC. But as to the remainder

of her claims, which are before the court, the

reasoning we have advanced above concerning

Benjamin's claims applies to Dalvit's claims as well

lor this reason, we may and do, without producing

an advisory disposition but also without deciding

whether UAL's bankruptcy discharge has barred

Dalvit's claims for rehef, affirm the district court's

summary judgment on each of Dalvit's claims. Cf

Carolina Cas. Ins. Co. v. Pinnacol Assurance, 425

hi 8d 921, 928 OGOth Cir.2005) (stating that where

court has jurisdiction to “affirm the judgment against

lone plaintiff] on a ground that would also require

affirmance of the judgement agvalnstl la second

plaintiff] we can affirm the judgment against [the

second plaintiff] without first determining las Stfee/

Ov. requires] that he has Article IT] standing.”)

The judge me nt of the district court 1 AFFIRMED

ssa

KN* After examining the bmefs and appellate

record, this panel has determined unanimously that

oral argument would not materially assist the

determination of this appeal. See Fed. R.App. VP

34(a)(2); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. ‘This orde:

and judgment is not binding precedent, except unde

the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R.App. P. 32.1

and 10th Cir. R. 32.1

FN1. Some evidence in the record suggests that ramp

supervisors were actually required to “cert” an eight

and-one-half hour day, with the half-hour being

allocated to a lunch break Any such § factual

discrepancy 18S not material to the issues in thi:

appeal, and we refer throughout this order and

judgment Lo an eight-hour day

FN2. The “FIT Team’ is sometimes referred to in thi

record as the ROP Team “ROP stands for

“resource optimization.” For the sake of consistency

we refer throughout this order and judgment to the

a ol bd ‘Team

,] ‘4 : |

ACM AAAWALSA ‘ Ai ‘ A 7 aA \ @ &a ‘ Ria

large part subsequent to the filing = of UAL,’

bankruptcy petition but prior to confirmation of if

Chapter 11 Plan, and thus would properly be treated

an administrative expense of the bankruptcy

See fin re S Airways, /nc., 365 BR. 624

n oe: (huankr. lt 1) Va 2007)

4a

IN4. Plaintiffs assert that UAL cannot assert

the bankruptcy discharge on appeal because it failed

to cross-appeal from the district court's rejection of

the defense Sut othe bankruptcy discharge 1!

jurisdictional, may be raised at any time, and al not

jurisdictional, 1s simply an alternate ground for

affirmance that did not require a cross-appeal. Se

e.g., tinkler v. (/nited States ex rel FAA, O82 2d

1456, 1461 r) 1 (1LOth Cir. 1992)

th NS ( ompare Lon Olal dé A Video Lil )

(furrola (in re Gurrola ), 328_BLR lbs, 164 (Oth

Cir. BAV2Z2005) (stating that provision in Ill U.S. &

;

24a) making judgements IMposing per nal liability

on debtor with re pect ft a disch irgea acbt \

involve a term ot art that equate with th

concept of a nullity associated with lach

jurisdiction’) with Gagan v. Am. Cablevision, /nec.,

lh’ 3d 951, 967-68 C7th Cir.1996) triking belat

attempt to raise bankruptcy discharge deten

concluding that under red. R.Civ.P. &(c), discharge

bankruptcy l affirmative detense that must Ly

timely asserted or waived). It hould be noted that

eat Hupremeé (Court hy recently \dopted ,

amendment to Fed RCiv.P. | elfective Dy¢ mi! yg

009, that eliminates discharge in bankruptcy a ul

itfirmative detense that 1s waived if not rai ad. ih

mmendment | consistent with & Aad] w

ids any judgment on a discharged dot ind en

n itt Lf th lebt, 3

; 4 y

{ Ivil pl

: I tp ( | 1] | ! il | I il |

deter

thes

claims

discharge. See Ruhrgas AG v. Marathon Oil Co., 526

hsecau exhaustion l yurisdictional, W é rriii'

nine the issue of whether plaintiffs exhaust

d

claims without first determining whether these

would be barred by UAL's bankruptcy

US 0/4. Weer OS, 119 S Cr 1LD63, 143 L.Kkd.2d 76

(1999) (stating there is “no unyielding jurisdictional

hierarchy and federal court may cho e amonep

threshold grounds for denying audience t rcase on

thie I

IN? Piaintill I ie ti i un

thi ippea

iNY list irt | nted

Dalvit filed a si na chary tf aiscrimination mh

about pepte mber Zl VU) ubs puecnt LO Cine filings |

her complaint in this action. Thi har rl

claim relating 1 mstructis i har but

included claims concerning harassment and dent

promotion adit Ul] { UT) Heged constru

discharge Apit. App \ \ 1

right { if letter trom thi mel i fel ual I

ZOOS a 1 I 1 if moti ! ’

wdeme! Sh Lit 1 en I

complain !

dischar tI roy i |

Sepuratle { l } ri

Plaintiff ! rt

exhat {1 yal I |

Li¢ {

ine circul

acLIOnN prio! t

provided ther

premature Pitt

periorming its

admini

pre tude

ce I< nad int Was pore PLidgic se a } \

Occidental Chem Corp., OL !

Yth Cir. 1990 \é mip! iS] rdd

however, exhaustion betore the

hurisdictional!l Jone y) |

Where exhaustion 1s Jurisdiction

bringing a clain party gener

ur lictional defect Dy I F

pdimunistrative remedu (

~ if ms I Lit ee

ma.2da 21 (I 3) (determinin

nexhaustead rerCA laim \

bsequent exhau }

Moreo\ I \ | Vv é W ¢ é

eCxnaustil } L? l rict !

finda that | nittin

prepudice \ | \pit Ap} \

I i | ae! mst t } f

r a I tL}

Ct NI evi I i

I Lé ( a f if

I Mi

{ i I \ !

prunyyie it \ y | I

' | }

’ ‘ |

trative

| I

}>e |

y\ (

I in] {i

ete ae

if .*

t/a

KN] Although Benjamin asserts that

“Mortimer controlled every personnel action during

his tenure in Denver’ and that she “could not have

been suspended without his approval,” Aplit. Opening

Isr. at 44, the reeord evidence she cites for these

conclusory contention: COME; from Menjamin's

stricken declaration

RFNI2 BB njamin contends that Massey “conferred

when lthe|} plaintiffs were

at 44. She refers to

with Mortime:

suspended” Aplt. Opening Ist

Massey's deposition, which uctually states “I sel

Kevin Mortimer Anow and 1 let dim Kyte know’ that

She had decided to send Benjamin home. Aplt._-App

Vol. VI at GOO femphasis added). When asked in a

what Mortimer said when. she

follow ups question

responded

Informed him of thi: decision, Massey

“Injothing ld

KNITS As proof of Mortimer's role in) suspending

Benjamin, she «ites Rhonda Patterson-Machus':

“Kevin Mortimer was 4 manaper who

very much ran the operation” Aplt. Opening Br. at

44 (quoting Aplt App., Vol. IV at 48%, (depo. p. 13))

Sut thas statement was made in the context of his

Anowledyr of thie mivestigation of Benjamin's

ryiestcvennt rieit bare rale iri her

statement that

cose wuwvetrica bt ovine

FN14. ‘The evidence is in conflict concerning whether

an action plan even existed. Mortimer told Dalvit

that she would not be placed on a ninety day action

plan as stated in her Letter of Counsel, because he

did not know how to write up sucha plan, piven that

(ter had found msullicient GCvidenc Lo

thie

upport a violation. Instead, he purportedly stated

thie bette. woul Lana Lhe acuior plan

MINIS. In her opening brief, Benjamin asserts, in

passiny, that che complained to Massey that she was

beiny sur; aed because she was female, and that

lat knew Oo) this complaint when she LOOK

ubsequent Adverse achions apainst her Aplt

64 n. 3. Theretore, Benjamin asserts,

(Qpening Ir. at

Lhere a sufficient connection between her

coroplaint and Massey's actions lo prove a@ prima

facie case of retahation separate and apart) from

revallation page don the « omplaint LO Hilt and without

Jivement by Mortimer ienjamin did not

llily 12h VE

f

make this argument to the district court, and we do

t COT) 1der it ner

NIG. 11 Massey was unaware of the discrimination

i¥

complaint Benjamin arguably Goes not even

establish a prima facic case of retahation, because

i} connection bye LWeen the

rif Pranic a LO show dA CauuUuoal

pore tected acuivily and Chie adverse employment

achiol See SONECS, IQ I' dd Ail 1190

MINI7Z. Benjamin further contends that she concluded

that no discipline was appropriate, citing Aplt.App

1 1V at 421. But this statement was in explanation

f why no “discipline was umposed. See 1d

Obviously, “discipline” meant something different to

Massey than the sanctions set out in the Letter of

Counsel, because she dd find those appropnate and

they were imposed on Menjamin

KMINJ&. Nail also stated that he investigated and

prepared spreadsheets concerning Bellopatrick and

Kreitas, but thut these showed no discrepancies in

hours as Benjamin's did. Apit.App., Vol. I] at 145-46

It is difficult’ to nquare this Claim with Bellopatrick

and Ireitas's admission to Massey that they worked

flexible hours while on the FIT Team, sometime

putting in less than a full day. See ia@., Vol. 1V at 41%

In any event, we do not rely on Nail's conclusions a

a basis for distinguishinpy Bellopatrick and Freita:

from [be nyamin

1d,

1)!

li UiriLtp Ss

133K

AY

l

{ )

13]

pudpment (doc me 2%) Detendant':

SlLECTID FOR PUBLICATION

[ihiled August 11.2008)

WIPED STATS DISTRICT COURT

Kk TH: DISRICT OF COLORADO

HIG: WARK ER ID. MILLI

[.Vlil ali }

NJIAMIN )

j

i -( /-(

} Bite

QCORITER ON MOTION TOR

SUMMARY JUDGMIEN I

belore me om the Delendants Motion

VA

MIOtIOnN

it

1¢

}

4] il

metrike Declaration {doc no 45), Plaintiffs’ Motion

to Substitute Amended Declarations In Opposition to

4

Motion tor oOumimary Judpment (duc Pic) 3), and thi

parties supplements to their summary judpment briels

(docs no 63 and 70). The motions are all opposed. Upon

review of the partuics’ filings, | conclude oral argument 1:

not required. I have jurisdiction to consider the matter on

the merits.’ For the reasons that follow, Defendant's

Motion for Summary Judgment will be pranted

Defendant's Motion to Strike Declarations will be granted

and Plaintiffs’ Motion lo Substitut Amended

Declarations In Opposition to Motion for Summary

Judgement will be denied as futile

FNI. Defendant argues in a separately-filed Motion to

Dismiss (doc no &3) that Plaintiffs’ claims wer

discharged in Defendant's bankruptcy reorpanization and

that this affirmative defense deprives the Court of subject

matter jurisdiction. | am not persuaded by Delendant':

argument in this repard and conclude that -f have

jurisdiction to rule on the summary judgment motion

} FN

Backvround

KN2. The facts set forth herein are taken from the parties’

briefs and attached exhibits and are undisputed, unless

otherwise noted. Plaintiffs did not entirely Comply with

my Inal and Pretrial Procedures, which require that the

muMocieG paragraphs in the “Response to Statement of

Undisputed Material Facts” and “Statement of Additional

Disputed or Undisputed Maternal Facts” contain “brief

factual explanation” and singular facts, not the extended

aryumentative parapraphs found throughout Plamtiffs’

brie!

4A? i

fluis is an employment discriminauion lawsuit

pursuant to Tithe VIP of the Civil Rights Act of 1964

(‘fithe VII’) and the amily and Medical leave Act

(“EMLA’) Plaintiff Benjamin bepan working = for

Dclendant United Air Lines, Inc. (*Untted’’) in Denver in

199%. In 2000, she was promoted to the position of ramp

supervisor. Plaintiff Dalvit was hired as a ramp supervisor

in June 2005. This 1s a management position; ramp

Supervisors are responsible for a number of jobs related to

ensuring On-time departures of aircraft. Ramp supervisor:

report to Operating managers (°OMs”), who in turn report

to department manapers. At the top of this hierarchy 1s the

Stauon manager. During the relevant time period, the

station manaper at Denver International Airport (*DIA”)

was James K yt

At various times after she bepan working at United,

lsenjamin requested and received time off under FMLA

for migraine headaches. In 2005, her OM was Steve

Peters (“Peters”) According to Benjamin, Peters made

remarks about her dependability, stating, “You need to be

here when you're scheduled to work.” Benjamin informed

Peters that her time off was pursuant to KMILA and that he

should not Comment on it. She also complained to the

department manager, Kevin Mortimer (“Mortimer”)

Mortimer spoke with Peters and reminded him that

[fsenjamin's intermittent KMILA lIcave was protected and

that she was entitled to use it. Benjamin continued to take

MILA leave after this incident

In late 2005, Umited bepan assembling a temporary

“PIT” (fix, improve, transform’) team, tasked with

finding ways of improving performance on the ramp

Mortimer invited Plaintiffs to be on the Il team at DIA,

Which was considered a special assignment. At the time,

there were six people on the team, three men and three

women. Assipnment to the FTP team was not a promotion

and did not involve a pay raise or other tanpible benefit

43a

but several witnes: testified that il Was

believed it could assist a team member's professional!

advancement at United

Ihe Fil team met in late November 2008. [he team

was to be supervised by an OM named Steven Nail

(“Nail”) According to Plaintiffs and other team members

at the first meeting of the FIL team, Nail informed the

team that they could work a flexible schedule and that

since they would be working some lonper days, they

could also work short days. Contemporancous notes taken

by Benjamin show the following

“Very flextble schedule-no set time’

“Just pet tasks accomplished, 1 need to chanpe days ofl

for whatever reason-no prob”

“Some days lonper some days shorter

~~

A~

~

Exh. L. to Motion for Sunimary Judgment (doc no

at UAL D113 1167

Plamtiffs testified that they asked Nail how they should

keep track of their time as the time recording system did

not permit employees to input partial shifts; rather, they

had to request that another employce make such changes

Accordiny to Plaintiffs, Nail told them he would pet back

to them on thus

In December 2005, less than a month after the initial

Fil team meeting, Nail received a complaint trom Peters

and at least one other employee that Plaintiffs had been

Jeaving work without having worked full, eight-hou

shifts. Nail also learned that Plaintiffs had failed to attend

a briefing he asked them to attend to explain the FIT team

to other employees. Nail informed Mortimer of these

complaints. Mortimer directed Nail to research Pio intiffs’

44 a

badpe histories (showinp the times when Plaintift{s

swiped their acce ss cards for DIA's secure areas and

employee parking, lot) for the previous tew weeks. Natl

Obtained the records tor Plaintif{s, and then later for all

lis team employees, and prepared spreadshects showing

the approximate times that each FIL team employee was

on site. According to testimony by Nail and Mortimer, the

spreadsheets showed that Plaintiffs and Denise Vanlyke

had not worked eight hours in every shift, but rather that

some Shifts had been longer and some shorter. According

to Natl, the other three employees, all of whom were

male, had worked eipht hours for each shift. The only

records in evidence, however, are of Plaintiffs tN? Nail

also testified that all the employees penerally informed

him of the shifts they were working. Plaintiffs do not

dispute that they had left work early on some Occasions

but contend that they had made up the time on other shifts

and that they had acted pursuant to Nail's express

authonzation tn this regard. In addition, they understood

from Natl that they were not required to inform him when

they were leaving early, although this is required for ramp

supervisors not on special assipnment

IPN3. Plaintiffs contend that all relevant records were

intentionally destroyed to cover up evidence 9 of

discrimination, which is strongly disputed by United. If

Plaintiffs indeed believe this to be the case, the proper

course is to move tor sanctions and properly briel the

issuc. [| must make a delerminauon On summary judgment

based on the record provided and wall not speculate about

possible impropnieties in connection with the absence of

matenal documents

After being informed of Nail's data, Kyte recommended

to Moruumer that another department manaper conduct an

Investipation into whether Plaintiffs had violated United's

Cfode of Conduct, which prohibits falsification of

45 a

company records Jean Massey, another

department manager and a peer of Mortimer's, wa:

assipned to investigate Plaintiffs. Massey 1s female and

did not report to Mortimer or even work in the same

department

Nail pave Massey the spreadsheets he prepared

According to Massey, Nail informed her that ve had told

employees their schedules were ftlexible but that they

were still expected to work eight and a half hours a

day 'N) Massey and Nail met with the Plaintiff

individually on December 28, 2005. During each meeting

Massy informed the Plaintiff that she was conducting an

Investipation and had determined that the Plaintiff had not

worked full shifts since beinp assipned to the IIT team

She took Plaintiffs’ security badpes and told them they

were being, held out of service until the tnvestipation wa:

complete. Plaintiffs were not paid while they were held

out of service. [his is a standard procedure during an

investigation into serious misconduct; if it is determined

that no violation occurred, the employee is paid tor thiat

time. Massey testified in her deposition that it was het

decision to suspend the Plaintiffs in this manner. kach

Plaintif? protested at the meeting that she had worked

short shifts but that she had done so with Nail's consent

and had made up the time. Indeed, Plainuft Benjamin

obtained and showed Massey the notes from the tnittal

meeting. Nail did not confirm Plaintilts’ contention at the

meetings with Massey and Plaintilis were unsuccesstul in

oo | 11 et ¢ ‘¢

QELCELAK Pipi Aaa Laide dh OL ypPRthowesta Al Cibcde LALDIA

KN4. There is some dispute about whether employees

were expected to be on site for emht or for cipht and a

half hours for each shift, but this does not appear to have

been an ISSUE it) (hese evel

46 a

lhere is a factual dispute as to Whether Massey

informed Plaintiffs that the investigation was confidential

Plaintiff{s deny that they were told to keep the

investigation confidential and, moreover provide

evidence that United's practice is to use a. sipned

confidentiality form for the purpose of ensuring that

information about investigations is not disclosed. [here it:

no dispute that Plaintiffs were not asked to sign a

confidentiality form. United appears to contend that

Plaintiffs should have understood that all investigations

tN‘

are Contidential

IPNS. During the investigation, David Jones, a manape!

and triend of the Plaintitts, asked Massey about what wa:

happening and she had a brief discussion with him, but

the record is not clear about the substance of that

discussion

[hat night or shortly thereafter, the Plaintiffs contacted

or allempted to contact the other FIT team members to see

if they had the same recollections of what Narl had told

them about hours and scheduling. Plaintiffs also sought

written stalements [rom them co-workers, several of

whom apreed to provide statements corroborating

Plaintitfs’ explanation. Plaintiffs taxed their Own written

summanies to Massey explaining the what they were told

their understanding of the polcy, and their strong denial

that they had committed any misconduct. Massey

interviewed the other members of the Fil team, who

confirmed that they understood Nail to say they could

work flexible hours, including more or less than eight

hours a day, as long as their total hours requirements wer

met and the work was done

Approximately one and a half weeks after they were

placed on suspension Plaintitts contacted United's human

resources department in Chicago to complain that thei

Suspension Wi aiscriminatory Viaintitt

contended that male employees on the FIT team: had also

lefl early on Occasion but only Plaintiffs were investipated

and suspended. Mortimer testified in his deposition that

he did not learn of this complaint until after Plaintiff

returned to work, there 1s Some evidence, however. that

he learned of it while Plaintiffs Were Stil (

suspension

I No leanne Nellt of Umted investigated Plainttt

complaint, which was apparently dropped becausk

Plaintitt: aid hol return M: Nellis all

Massey ultimately determined that Plaintilfts did not

falsify their time records and that they should be returned

to work. Massey, in consultation with Mortimer and Kyt

also decided that Plaintifts should not be returned to the

FKll team because of Plaintifts’ discussion of the

Investigation with other team members. Other reason

piven by Massey for this decision was “credibility, based

on the tact that they lett during different hours and

didn't Iet their [OM] know what was going on” and that

other employees had questioned the Plaintifls’ schedule

Mortimer testified that the reason for Plaintitts' remov:

from the Il team was the “expectation for a member of

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Plaintitis were scheduled to meet individually with

Massey and Mortimer around January 18 POU. o$tn th

meeting, each were piven a “letter ol counsel eoned Dy

Mas sey, and stating the lollowiuns

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Sila

After exhausting their administrative remedies, each

Plaintiff filed a lawsuit, thereafter consolidated into this

action. Plaintiff Dalvit asserts the following claims: (1)

discrimination and retaliation in violation of Tithe VII; (2)

discrimination and retaliation in violation of C.R.S. §&

24-34-40] ef seg. Plaintiff Benjamin asserts the following

claims: (1) discrimination and retaliation in violation of

Title VII; (2) retaliation in violation of the Family

Medical Leave Act, 29 U.S.C. §§ 2601 ef seg. ; (3)

discrimination and retaliation in violation of C.R.S. §§

24-34-4001 ef seg. Dalvit left United after the initiation of

this lawsuit and thereafter filed a second charge of

discrimination with the EEOC alleging that she had been

constructively discharged.

Standard of Review

Summary judgment is appropriate when there 1s 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.

$6. A factual tssue is genuine if “the evidence is such that

a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248

(1986).

Where “the moving party does not bear the ultimate

burden of persuasion at trial, it may satisfy its burden at

the summary judgment stage by identifying ‘a lack of

evidence for ihe nonmmovant on an essential Clement Of the

nonmovant's claim.’ “ Bausman_yv._ Interstate Brands

Corp., * F.3d 1111, 1115 (10th Cir.2001) (quoting

Adler v. Wal-Mart pea Inc., 144 F.3d 664, 671 (10th

fs an Then, “|[t]o eeksidl summary judgment, the

nonmova: must establish, at a minimum, an inference of

the presence of cach clement essential to the case.” /d

S2a

A plaintiff alleging employment

discrimination may prove intentional discrimination by

direct or indirect evidence. In the absence of direct

evidence, the analysis set forth in McDonnell Douglas

Corp v. Green, 411 U.S. 792, 802-804 (1973), provides

the framework for assessing indirect, or circumstantial,

evidence. Kendrick v. Penske Transp. Servs., Inc., 220

F.3d 1220, 1226 (10th Cir.2000). Under this analysis, the

plaintiff bears the initial burden of presenting a prima

facie case of discrimination. Kendrick, 220 F.3d at 1226.

If the plaintiff establishes a prima facie case, the burden

shifts to the defendant “to articulate some legitimate,

nondiscriminatory reason” for its action. Jd at 1226

(quoting McDonnell Douglas, 411 U.S. at 802). If the

defendant presents such a reason, the plaintiff bears the

“ultimate burden” of establishing that these proffered

v_ St. Mary-Corwin Hosp., 221 F.3d 1160, 1167 (10th

Cir.2000).

The plaintiff may show pretext by demonstrating “such

weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions’ in’ the employer's

proffered legitimate reasons for its actions that a

reasonable factfinder could rationally find them unworthy

or credence and hence that the employer did not act for

the asserted non-discriminatory reasons.” Jaramillo_v.

Colorado Judicial Dept, 427 F.3d 1303, 1308 (10th

Cir.2005); see also Kendrick, 220 F.3d at 1230 (three

ways of showing pretext are: (1) evidence that the

defendant's stated reason for the adverse action was false;

(2) evidence that the defendant acted contrary to a written

company policy prescribing the action to be taken under

the circumstances; or (3) evidence that defendant acted

contrary to an unwritten policy or practice when making

the adverse decision).

S3a

To make out a prima facie case of

discrimination under Tithe VII, the plaintiff must show (1)

membership in a_e protected class, (2) an adverse

employment action, and (3) disparate treatment among

similarly situated employees. Orr _v. City of Albuquerque,

417 F .3d 1144, 1149 (10th Cir.2005). At the prima facie

stage, the plaintiff's burden is “not onerous” and _ the

plaintiff need only raise the inference of discrimination

Id (citations omitted).

The burden shifting approach also applies to a claim of

retaliation. To establish a prima facie claim under Title

VII for retaliation, a plaintiff must establish three

elements: (1) the plaintiff engaged in protected opposition

to discrimination; (2) a reasonable employee would have

found the challenged action materially adverse; and (3) a

causal connection exists between the protected activity

and the materially adverse action. Argo v. Blue Cross &

Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th

Cir.2006) (citing Burlington Northern & Santa Fe Ry. Co.

v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345

(2006)).

A prima facie case of retaliation for cxercising rights

under FMLA involves the following: (1) the plaintiff

availed herself of a protected right under the FMLA; (2)

she was adversely affected by an employment decision;

and (3) there is a causal connection between the two

actions. Morgan v_ Hilti, Inc, 108 F.3d 1319, 1325 (10th

ra? iT ay & Se be

Cir. 997).

Discussion

A. Motion to Strike and Motion to Amend

] will first address Defendant's Motion to Strike

Declarations (doc no 45), and Plaintiffs' Motion to

Substitute Amended Declarations In Opposition to

S4a

Motion for Summary Judgment (doc no 53).

Plaintiffs included as evidence in their response to the

Motion for Summary Judgment declarations, or affidavits,

signed by them under penalty of perjury. See Exh. 5, 6 to

Resp. to Motion for Summary Judgment, “Declaration of

Dava Dalvit Pursuant to 28 U.S.C. § 1746” (doc no 33-6),

“Declaration of Debra Benjamin Pursuant to 28 U.S.C. §

1746” (doc no 33-7). Defendant seeks to strike these

declarations on the following grounds: (1) they are made

upon information and belief, rather than personal

knowledge; (2) they do not set forth facts that would be

admissible tn evidence, but rather contain hearsay,

irrelevant statements, conclusory allegations, legal

argument, statements that could not plausibly be premised

upon personal knowledge, and statements that are too

vague, incoherent, or incomplete to be useful; and (3)

Plaintiff Dalvit's declaration contradicts her sworn

deposition testimony. Plaintiffs oppose the motion, and

seek, by separate motion, to amend the declarations to

remove the introductory statement in each declaration

indicating that the declaration is “upon information and

belief.” Plaintiffs otherwise would not alter the content of

the declarations.

| agree with Defendant that the declarations should be

stricken. Even if they are amended te delete the

introductory statement (I, [Plaintiff], state as follows

upon information and belief ...”), they do not set forth

Jacts based on the personal knowledge of the Plaintiffs as

would be admissible in evidence, as required by

Fed.R.Civ.P. 5S6(e). Rather, the declarations contain

primarily (1) information that its cumulative of other

evidence on the record (including statements duplicating

Plaintiffs’ own deposition testimony and that of other

witnesses); and (2) ~~ conclusory, unsubstantiated

statements. See, e.g., Dalvit Declaration at 4 15 (“Il know

that Jean Massey claims that she wrote the letter placed in

our file. That comment and that letter could never have

55a

been placed m our files without the approval of

Kevin Mortimer. Nothing like that ever happened in the

Denver ramp without Kevin's fingerprints being all over

it.”). “While an affidavit is certainly an appropriate

vehicle to establish a fact for summary judgment

purposes, the affidavit must set forth facts, not conclusory

statements.” BancOklahoma_ Mortgage Corp. v. Capital

Title Co., 194 F.3d 1089, 1101 (10th Cir.1999); see also

Cir.2004) (“Unsubstantiated 9 allegations carry’ no

probative weight in summary judgment proceedings.”)

(citations omitted).

The majority of the declarations simply repeat and

argumentatively recharacterize other evidence. Beyond

that, Plaintiffs merely present their inferences and

conclusory assertions regarding Mortimer's control over

the department and practice of discriminating against

women, United's knowledge and the knowledge of

various managers, and United's alleged anti-women

culture '"’, and efforts to “bury” Plaintiffs’ complaint.

Plaintiffs also present conclusory statements regarding

differential treatment between men and women, but

present no facts to show that they have knowledge of the

underlying events. kor example, Plaintiff Dalvit asserts in

her declaration, “An employee named Paul Fishler was

investigated for leaving work early, and Jean Massey

conducted the investigation. But he was not suspended

without pay, Itke we were. And the investigation was

ulimaiciy dropped with no discipline.” Datvit Dcctaration

at | 7. Aside from offering no facts about when this

occurred, whether this employee was in the same

department as Plaintiffs and subject to the same polictes

and management as Plaintiffs (he was apparently not on

the IT team), and whether he was a management level

employce like Plaintiffs, Plaintiff offers no facts

indicating that she was privy to the presumably

56a

confidential details of the investigation, including

what triggered the investigation or its outcome.

EN7. Sce Benjamin Declaration at J 9 (“It's a good old

boy club and if you have one misstep management will

come down on you, whereas the men get away with

ever ything’’).

Plaintiffs argue in response that the hearsay portions of

the declarations are admissible because they are

admissions of a party opponent. While some of the

hearsay statements contained in the declarations may be

admissible on this basis, this is not the case when

Piaintiffs merely restate and recharacterize another

witness's deposition testimony, as is the case _ here.

Plaintiffs also argue that their lay witness conclusions and

Observations are admissible pursuant to FRE 701.

Plaintiffs’ argument misses the point, however, as it fails

to distinguish between Plaintiffs’ opinions, which could be

admissible in trial if the requirements of Rule 701 are

satisfied, and facts. Plaintiffs' opinions, offered with little

or no foundation, are not facts pursuant to Fed.R.Civ.P.

56(e) and are not sufficient to create genuine issues for

the purposes of defeating Defendant's motion. See

Cir.2004) (“these assertions are not supported in the

record nor does [plaintiffappellant’s] affidavit demonstrate

any personal knowledge or corroborating, evidence, and,

as such, are insufficient to create a genuine question of

material fact ...”). Although some portions of the

declarations may be admissible as facts based on the

personal knowledge of the Plaintiffs, such information

appears elsewhere in the record and will be considered on

that basis. Accordingly, Defendant's motion will be

grantcd.

S/a

Plaintitf's proposed amendment, to indicate

that the information is based on Plaintiffs’ knowledge

rather than *

the significant deficiencies in the affidavits. Therefore, |

upon information and belief,” will not cure

will deny Plaintiffs’ motion to amend as futile

8. Motion for Summary Judgement

|. Title Vil discrimination and retaliation

Defendant argues that Plaintiffs cannot establish a prima

facie case because they cannot show an adverse action or

disparate treatment (or other circumstances giving rise to

an inference of discrimination). In addition, Detendant

contends that even if Plaintiffs could establish prima facie

cases, they could not demonstrate that United's actions

were pretextual. Defendant makes a similar argument

with respect to Plaintiffs’ retaliation claim, 1-e., that

Plaintiffs cannot show adverse action and cannot show

that any adverse action was causally connected to their

protected activity. [I will address each alleged adverse

action in turn

Suspension without pay: Yhere 1s litthe doubt this could

be an adverse action in light of the United States Supreme

Court's recent ruling in Burlington Northern, a Title VII

retaliation case involving indefinite suspension without

pay, even if the pay is eventually restored. 126 S.Ct.

Z4i7-i8 (uphoiding jury's” finding that indefinite

Suspension without pay was materially adverse, even

where back pay was given after Suspension ended). The

cases cited by United all pre-date the Burlington Northern

decision and are inapplicable

Moreover, I conclude that Plainuffs have proffered

some evidence to establish that they were treated

differently from the men on the FIT team. Plaintiffs have

offered evidence, some of which may be admissible, that

IS a

some of their male team members may have

worked shorter days but were not investigated and

suspended for it. Accordingly, 1 conclude that Plaintiffs

may be able to establish a prima facie case in this regard

Notwithstanding, I apree that Plaintiffs cannot

demonstrate that the nondiscriminatory reason for the

suspension was a pretext for unlawful discrimination. I[t ts

undisputed that the investigation of Plaintiffs was

triggercd by complaints from at least two other employees

or managers outside of the proup. Moreover, according to

Natl, the spreadsheets he assembled showed that Plaintiffs

and VanDyke *™® worked less than eight hour shifts on

some days, but that the other team members appeared to

have worked full shifts. “*? Plaintiffs have not rebutted

this testimony and their unsupported allegations of

intentional destruction of evidence are not sufficient to do

so. Again, the undisputed evidence shows that all of the

spreadsheets were provided to Massey, who by all

accounts was an independent investigator. There is no

evidence that Mortimer or Nail somehow prejudged or

influenced the decision. It was Massey's decision, based

on the evidence she had, to suspend the Plaintiffs during

the investigation.

FN&. There is no explanation for why VanDyke, who

apparently committed the same alleged infractions as

Plainiiffs, was not also investigated and placed on

suspension. However, since VanDyke 1s in the same

protected class as Plaintiffs, the more tavorable treatment

she apparently reccived does not give rise to an inference

of discrimination

I'N9. There is also evidence that while Plaintiffs did not

inform Nail when they were leaving early (because they

justifiably believed it was not necessary), the other team

59 a

members may have kept Natl better informed

It is well-established in this circuit that “ “[t}he relevant

inquiry is not whether the employer's proffered reasons

were wise, fair or correct, but whether it honestly believed

those reasons and acted in good faith upon those beliets.”

Rivera v. City and County of Denver, 365 _k.3d 912, 924-

25 (10th Cir.2004) (internal quotation marks’ and

alteration omitted); see also Kendrick, 220 F.3d at 1231

(“[A] challenge of pretext requires us to look at the facts

as they appear to the person making the decision to

terminate plaintiff.”). Thus, even if the stated reasons later

prove to be untrue, I must examine whether the supervisor

believed those reasons and made a good faith decision at

the time of the discharge. “The reason for this rule ts

plain: our role is to prevent intentional discriminatory

hiring practices, not to act as a ‘super personnel

department,” second guessing employers' honestly held

(even if erroneous) business judgments.” Young v. Dillon

Comp., 468 F.3d 1243, 1250 (10th Cir.2006) (citations

omitted).

Plaintiffs have provided no evidence tending to show

that Massey did not honestly believe that the complaints,

spreadsheets, and information she received trom Nail

showed that Plaintiffs had worked shifts of less than eight

hours and that this was contrary to the instructions of Nail

and company policy. Similarly, there is no evidence in the

record from which a reasonable jury could infer thai

Massey, at ihe time she made the decision to suspend

Plaintiffs, knew that men on the team had left early but

were not being investigated for it. It does appear to be

unfair that Plaintiffs were suspended based on conduct

that they believed in good faith was approved by their

. . - . ENIO

manaper, but that does not make it discriminatory.

60a

ENO Plaintiffs also appeal lo arpuc that

discrimination is shown because Nail had made sexist

comments in the past, and Nail brought the issue to

Mortimer's attention. A_ plaintiff must demonstrate a

nexus between allegedly discriminatory statements made

by a supervisor and the adverse action. Rea v. Martin

Marietta Corp., 29 ¥.3d 1450, 1457 (10th Cir.1994). To

demonstrate the causal nexus, the plaintiff must show that

“the allegedly discriminatory comments were directed at

[the plaintiff], her position, or the defendant's policy

which resulted in the adverse action taken against the

plaintiff.” /d I see no such connection here, particularly

where the investigation was triggered by complaints from

al least Iwo other employees or managers

Plainuffs argue that pretext is shown because Massey

should have known at the time of the suspension that

Plaintiffs were innocent. | disagree that the evidence

before Massey at that time was so compclling that she

should have known that no rule violation had occurred.

Nail told Massey that he had instructed his team they

could work flexible hours but were still expected to work

full eight hour shifts. The spreadsheets showed that

Plaintiffs had worked less than eight hours on certain

days, even if they had made up that time on other days

Based on this evidence, I cannot conclude that Massey's

belief that Plaintiffs may have violated United's rules was

err, . ENI

unjustified or implausible. “~~

Nil. Massey interviewed the other team members

approximately a week or two later and discovered that

they had the same understanding as Plaintiffs regarding

hours. It appears that shortly thereafter she determined

there was no rule violation and returned Plaintiffs to

work

6la

Plaintiffs also contend that the evidence’ of

Mortimer's conduct after their suspenston demonstrates

pretext at the time of the suspension decision, as does the

alleged “pood old boy” culture of United. Again, |

disagree. Although Mortimer's actions and statements are

relevant to other claims by Plaintiffs, they are irrelevant

here. Despite Plaintiffs‘ conclusory assertions — that

Mortimer controlled every event in this story, the

undisputed evidence shows that Massey was_ the

decisionmaker with respect to the suspension, which was

approved by a Chicago human resources representative.

Similarly, Plaintiffs' evidence regarding a peneral practice

of United to discipline women for time sheet violations

but not men is vague and lacking in foundation; such

decisions apparently imvolved numerous different

managers making decisions at unrelated times and under

different circumstances, and Plaintiffs clearly do not have

personal knowledge the details of all such personnel

decisions. ‘Their conclusory assertions that men were

treated more favorably then they were in “identical”

circumstances 1s lacking in foundation, as Plaintiffs have

presented little or no information about the underlying

N12 ‘ania

Plaintiffs have

facts of their supposed comparators

pointed to no facts in evidence to indicate that Massey's

decision was a pretext for unlawful discrimination,

Accordingly, | agree that Plaintiffs’ claim — of

discrimination, to the extent it is based on United's

decision to suspend Plaintiffs without pay during the

investipation, should be dismissed

I-N12. As discussed, Plaintiffs did present evidence that

they observed the male FIT team members leaving carly,

but it is not clear whether this occurred when these co

workers were assigned to FIT or whether Plaintiffs were

in a position to know whether these individuals had

worked full shifts on the days they allegedly left early.

Even this, however, does not mean that circumstances

were identical; Plaintiffs were the subject of complaints

62 a

by other managers and cmployees and had missed

a briefing that they were told by their OM to attend,

circumstances that do not appear to be present with other

employees

I note that Plaintifis have not asserted that they engaged

in any protected opposition to discrimination before the

suspension; accordingly, to the extent that Plaintiffs

contend that the suspension was retaliatory, such a claim

should also be dismissed

Removal from FIT Team Although — Plaintuffs'

assignment to the FIT team did not mean an increase in

pay, tangible benetits, or a promotion, Plaintiffs have

presented some evidence that tt could assist in

advancement at the company (or at least was believed to

at the time). Plaintiffs appear to argue that, as a corollary,

removal from the team would harm their future

employment with United. Employment actions _ that

impact an employee's future career prospects can be

adverse for the purposes of Tithe VII. Berry v_ Stevinson

Chevrolet, 74 F.3d 980, 986 (lOth Cir.1996); see also

Robinson-Keeder v_Am. Council on kduc., 532 V.Supp.2d

6, 16 (D.D.C.2008).

liere, however, Plaintiffs have offered no evidence,

Other than their own speculation, that removal from the

oe icam could’ nepatively 9 affect their careel

advancement. The team was temporary, and indeed 1s

apparently no longer in existence. There is no evidence

that being a member of such a team was a prerequisite to

any other positions at United, or that other hiring

manapers would have reason to question Plaintiffs’

removal from a_- temporary” special assignment

Accordingly, | agree with United that removal from the

rlT team, standing alone, was not an adverse action.

63a

Letter of Counsel’ By contrast, Plaintiffs have

presented evidence from which a reasonable jury could

infer that the letter of counsel admonishing Plaintiffs

amounted to an adverse employment action. ‘The disputed

and undisputed facts show that Plaintiffs would have to

disclose this letter to other managers if they sought other

jobs in the company. They have also presented evidence

that a manager making a hiring decision could use a letter

like this as a way of eliminating prospects and thus would

reduce their chances of being promoted. Plaintiffs have

presented evidence that this letter was going to remain in

their files for five years, and thus could have a long-

lasting effect. Moreover, the tone of the letter strongly

suggests wrongdoing, even though it is undisputed that

Plaintiffs did not violate any rules or policies. | take note

that Plaintiffs were management level employees and

would be seeking positions of responsibility; the letter

suppests the writer has “doubt tn your ability” to

successfully manage employees and lead the department

on a special assignment,” language that certainly could

dissuade another United manager from hiring Plaintiffs tn

a more senior position.

| note that in most cases where the court found that

warning letters were adverse there were typically

numerous warnings or “write ups” that increased the

employee's chances of discharge, whereas this case

involves a single warning letter. See eg., Roberts v

Roadwav_kxpress, Inc.,_ 149 }.3d 1098, 1104 (10th

Cir.1998). Nonetheless, the Tenth Circuit instructs that |

must “liberally interpret” whether an adverse employment

action exists, examining the unique factors relevant to the

particular situation. Flaynes v. Level 3 Comm'ns, LLC, 456

presented here, | conclude that the letter of reprimand

could amount to an adverse action

64a

The next issue iS whether there 1s evidence

supvesting that the letter was discriminatory or retaliatory.

Apain, the undisputed evidence is that Massey decided

that admonishment was appropriate. Although = she

informed Mortimer, there 1s no evidence that he had any

input in the content of the letter. In addition, it appears

that her decision was also supported by the human

resources representative whom she kept apprised duriny

the investigation. Similarly, although aspects of this letter

appear to be unfair, as a jury could find that Plaintiffs

acted in reliance on their understanding of Natl's

directions and there is evidence that Plaintiffs’ discussions

with other employees did not violate any rule or practice,

this does not raise an inference of discriminatory or

retaliatory motive. Again, it is undisputed that Plaintiffs

did leave early, that they did miss a briefing that their

supervisor directed them to attend, that others complained

about their attendance, and that they did talk to other team

members aficr being told there was an investigation into

their conduct. Given this, and the absence of facts

indicating a retaliatory N12 or discriminatory motive on

the part of Massey or evidence that she acted at

Mortimer's behest, I cannot conclude that her reason for

admonishing Plaintiffs was false, contrary to policy or

practice, or otherwise indicative of pretext. There are

simply no facts from which a jury could conclude that

Massey did not honestly believe that Plaintiffs had acted

inappropriately as members of management, even if their

conduct did not violate any policy. As noted, it is not this

Court's role to ensure fairness in the workplace, but only

to provide remedies for such conduct that is prohibited by

law. Accordingly, | agree that Plaintiffs cannot

demonstrate that the decision to issue the admonishment

letter was a pretext for unlawful discrimination or

retaliation

N13. It is undisputed that Massey did not learn of

Plaintiffs’ complaint of discrimination until the initiation

65a

of this lawsuit

Action Plan: \ agree with Defendant that the 90 day

action plan implemented by Patterson-I:achus was not an

adverse action. /laynes, 456 F.3d at 1224. There is no

evidence that this affected Plaintifis' tangible employment

benefits in anyway or had any effect on their promotion

prospects once it was completed

Interference with Promotion and Evaluation: Piaintifts

have provided evidence that after Plaintiffs returned from

suspension, Mortimer directly interfered with their

professional advancement and evaluations, which in turn

affected their salaries. Plaintiffs’ evidence is __ that

Mortimer refused to approve their transfers to a shift that

would assist them in getting experience needed to

advance. Similarly, Plaintiffs have presented evidence

that Mortimer instructed their supervisor to lower thei

performance evaluations, and that such evaluations affect

salary levels. ‘These facts, if credited, would demonstrate

an adverse action. Plaintiffs also have carried their burden

to show that Mortimer'’s motivation in this regard was to

retaliate apainst Plaintiffs for their complaint” of

discrimination. It is undisputed that Mortimer was aware

of their protected activity at this time. In addition,

Patterson-Eachus's testimony provides direct evidence

that Mortimer sought to retaliate against Plaintiffs by

preventing their transfers and promotions and by lowcring

their performance evaluations.

Deiendant, however, contends that Plaintiffs cannot

base their claim on this conduct because it was not

included in their charge of discrimination to the ELOC

An employee may not assert a claim under Jitle VII claim

based on conduct not first asserted in a discrimination

charge filed with the EEOC or other proper administrative

agency. Holmes v. Utah, Dept of Workforce Services, 483

F.3d 1057, 1070 (10th Cir.2007).

66 a

Both Plaintiffs filed charges of discrimination with the

Colorado Civil Rights Division and EEOC on or around

April 13, 2005. Exh 20, 21 to Resp. to Motion for

Summary Judgment (docs no 33-21] and 33-22). Both

Plaintiffs checked the box on the first page of the charge

form for “Retaliation.” As particulars underlying the

charge, Plaintiffs refer to the suspension, removal from

special assipnment, probation, disciplinary letter, and pay

disparities (a claim later dropped by Plaintifis). Dalvit

submitted a second charge of discrimination on or around

September 21, 2007, in which she alleged that she was

constructively discharged on or around August 10, 2007.

Exh. 30 to Resp. To Motion for Summary Judgment (doc

no 33-31). In it, she asserts that she suffered harassment

and retaliation as a_result’ of complaining about

discrimination, specifically that she applied for numerous

jobs but her application was not processed, that she was

placed on an action plan and had a disciplinary letter

placed in her file, and that the company failed to

investigate her discrimination complaint. The issue before

me, then, is whether Mortimer's§ alleged conduct

reasonably talls within the charges of discrimination filed

by Plaintiffs. AJacKenzie v. City and County of Denver,

414 F.3d 1266, 1274 (0th Cir.2005) (“A plaintiff's claim

in federal court is generaliy limited by the scope of the

administrative investigation that can reasonably be

expected to follow the charge of discrimination submitted

to the FEOC.”’’)

The Supreme Court has made clear that cach discrete

incident of discriminatory or retaliatory conduct

constitutes its own “unlawful employment practice” for

which administrative remedies must be exhausted

National Railroad Passenger Corp. v. Morgan, 536 U.S.

LO1 (2002); Martinez v. Potter, 347 ¥V.3d_ 1208 (10th

Cir.2003). Although Plaintiffs clearly asserted a charge of

discrimination based on alleged retaliation, they did not

67a

include the specific retaliatory acts identifted

by PattersonEachus in her deposition. I conclude that

these acts, i.e., preventing Plaintiffs from transferring to

other shifts and directing that Plaintiffs' pcrformance

evaluations be lowered, are discrete incidents that must

first be the subject of an administrative charge before

being heard in this court.™* | understand that Plaintiffs

did not discover this evidence until after the

commencement of the litigation, which could toll the time

for filing such a charge, but this does not excuse the

exhaustion requirement. Martinez, 347 V.3d at 1210-11!

(exhaustion rule “is equally applicable ... to discrete

claims based on incidents occurring after the filing of

Plaintiff's EEO complaint.”) (emphasis in the original).

Accordingly, 1 agree with Defendant that Plaintiffs’ claims

cannot be premised on this alleged adverse action.

EFN14. I do not opine as to whether these actions are fairly

encompassed in Dalvit's second charge of discrimination

(1.e., constructive discharge); as discussed below, the

second charge is now the subject of a separate lawsuit

Constructive Discharze and Hostile Work Environment

As discussed above, Dalvit has also asserted that she was

constructively discharged and subjected to a hostile work

environment. A right to sue letter on Dalvit's second

2008

after United filed its Motion for Summary Judgment.

Although Plaintiff initially sought to amend he: compiaint

to assert a constructive discharge claim, she has

?

charge of discrimination was issued [ebruary |

withdrawn that motion and filed a scparate lawsuit

concerning this claim (Civil Action No. O08-cv-00881-

RPM). Nonetheless, in her supplemental brief, Plaintiff

argues that the second charge of discrimination and right

to sue letter can be retroactively applied to allegations

contained in the complaint now governing this lawsuit. |

disagree. Such a proposition completely ignores the

O08 a

legislative scheme governing Title Vil

claims, which requires exhaustion of administrative

remedies before such claims can be asserted in a lawsuit.

Plaintiff did not provide any legal authority demonstrating

that a party can reverse this order by preemptively

asserting Claims that have not yet been exhausted and then

later “curing” this defect with a later-filed charge of

discrimination. | apree with Defendant, moreover, that

permitting this would cause Defendant prejudice, as

discovery and summary judgment briefing was based on

the claims contained in the first charge of discrimination

and the complaint derived from it. Accordingly, |

conclude that the question of whether Plaintiff Dalvit was

constructively discharged and or suffered retaliation or

discrimination from a hostile work environment is not at

issue in this Case.

3. Retaliation for exercise of ki MLA rights

Defendant first argues that Plaintiff Benjamin cannot

base her KMLA claim on any events occurring more than

300 days before the filing date of her EEOC charge.

Defendant cites no appropriate legal authority for this

proposition, as it has conflated the remedies for FMLA

with Tithe VII. FMLA has its own enforcement provisions

under 29 U.S.C. § 2654, which permits an cmployce to

file a complaint with the Secretary of Labor or to file a

private lawsuit. If the employee files a private lawsuit, “11

must be filed within two years after the last action which

the employee contends was in violation of the Act, or

three years if the violation was willful.” 29 C.F.R. §

$25.400(b). Accordingly, I will consider Plaintiff's

evidence of alleged adverse actions Occurring up to two

years prior to the filing of her lawsuit.

Notwithstanding this timeline, however, I agree that

Plainuff Benjamin cannot demonstrate a prima facie case

of retaliation for her use of FMLA time. In her response

69 a

ywief, she argues _ that causation 1s shown by the

following chain of events: “(a) plaintiff was chastised by

Steve Peters for her dependability in connection with her

use of her FMLA, (b) plaintiff complained to the ramp

manager |1.e€., Mortimer], who warned Peters of the legal

prohibition against taking an adverse action against an

employee for use of FMLA, (c) Peters then placed

plaintiff on an action plan relating to her dependability,

(d) Peters then falsely complained to plaintiff's new boss

on special assignment with the FIT team (Nail) that he

thought plaintiff was shorting the company on hours

worked, (e)

gave Mortimer the opportunity to suspend plaintiffs

, which falsely triggered an investigation and

without pay for one month, followed by a string of

adverse actions.” Plaintiffs' Opp. (doc no 31) at 3] n. 6

ven if Plaintiff could demonstrate that Peters retaliated

against her by making a false complaint, which then

triggered the investigation, this fact 1s immaterial. It 1s

undisputed that at least one other employee also

complained about Plaintiffs’ attendance while they were

on the IIl team. Moreover, as discussed above, the

relevant decistonmaker thereafter was Massey, and there

is no evidence that Massey was aware of Plaintiff's use of

EFMILA or that Peters influenced the course of the

investigation or its Oulcome in any way. These events,

therefore, do not constitute adverse actions causally

connected to Plaintiff's FMLA leave

Plaintiff testified in her deposition that Peters, when he

was her supervisor, placed her on several action plans

regarding her “dependability.” Defendant disputes that

this was the reason for the action plans but offers no

contradictory evidence. Nonetheless, as discussed above,

1 conclude that the action plans, without more, were not

adverse actions sufficient to support a claim of retaliation

under FMLA. Moreover, it appears that Peters thereafter

gave Defendant Dalvil a positive performance review and

70a

she was invited to be on the FI l team. Under these

circumstances, I conclude that Plaintiff Benjamin's FMLA

retaliation claim also fails as a matter of law

Accordingly, it is ordered

1. Defendant's Motion for Summary Judgment (doc no

2%) 1s pranted. Summary judgment shall enter in favor of

United Air Lines, Inc., and against Plaintiffs on all claims

2. Defendant's Motion to Strike Declarations (doc no

45) 1s pranted

3 Plaintiff's Motion to Substitute Amended

Declarations in Opposition to Motion for Summary

Judgment (doc no 53) is dented

4. Defendant may have its costs

5. Defendant's Motion to Dismiss (doc no 83) 1s denied

as moot