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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1962%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 830

## Text

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 . . 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 “ 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 Ie |
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
manapement is to be at work during preseribed timc
unless otherwise excused from that Massey, howeve
testifticd in het deposition that Plaintitts did not violat
t ft vif

ed's (¢ moot Conduct’ Mortime

aaiany } a, © acre

testitied similarly

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

\ if ) y ica (
[ mpYVE' Ve y Lil t) i . bis | }
during thi iInvestipavion cau ( esti ,
ibility as a lead | tne Organ il { ( if }
( cuUro cS i rds of you iri itu { )
ert WOT? early 1) LLLP ( i |
thornzauon ¢ i Ciperatu Manaper. In 1 \
nermyb Of manag nent and trontl )
ir frequent absen auc oned you 1
| hedul Lithnourph ye ‘\ " na mecha ’
) ve 4 til re } i | ! i 1\ ) r
When you telty h ¢ } |
I hitt I | [ I |
il I rif ial vy tt } \ {
[eer Tubtty it j ( it c's i i ( | |
( pecial i | Cnt. f peel if ’
the mnvestization was ¢ LI i iiw | "
Other Supervi 1 |

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1962%3A1. Public record. Not legal advice.