August 24, 2019

Tenth Circuit: Employee’s Onerous Commute Does Not Constitute Discriminatory Intent by Employer

The Tenth Circuit Court of Appeals issued its opinion in Bennett v. Windstream Communications, Inc. on Thursday, July 9, 2015.

Susan Bennett was employed for 12 years by Paetec Communications, Inc. as a Fiber Optic Tech III, where she performed work on fiber optic cables in various areas of Oklahoma and Arkansas. In 2011, Windstream acquired Paetec and implemented new policies requiring the Fiber Optic Techs to check in at regional offices every day at 8 a.m. The closest regional office to Ms. Bennett was in Tulsa, which required her to commute more than four hours every day. However, she never requested an accommodation due to her onerous commute. Frequently, Ms. Bennett arrived at the Tulsa office several hours late, and many days she did not check in at all. Ms. Bennett missed cross-training opportunities because of her failure to report to the Tulsa office.

On May 22, 2012, Ms. Bennett was subject to a disciplinary action for her tardiness and absences, and that day she reported chest and shoulder pain due to work-related stress. Windstream completed a workers’ compensation claim and Ms. Bennett initiated a short-term disability claim with MetLife, Windstream’s disability insurance carrier. MetLife paid benefits to Ms. Bennett through June 27, 2012, and Windstream paid out Ms. Bennett’s remaining vacation and paid leave days through July 27, 2012. Windstream retrieved a company vehicle and tools from Ms. Bennett in June 2012. On July 26, 2012, Windstream sent a letter to Ms. Bennett requiring her to elect one of three options by August 3, 2012: (1) return to work, (2) provide medical documentation supporting continued disability leave, or (3) resign, and advising her that a failure to respond would be considered job abandonment. Ms. Bennett emailed her supervisors on the deadline, advising that the discriminatory conditions Windstream placed on her left her no choice but to petition for severance pay. Windstream sent Ms. Bennett a letter on August 8 informing her that her employment was “separated” due to her failure to return from disability leave.

Ms. Bennett filed suit in district court, alleging gender discrimination in violation of Title VII and age discrimination in violation of the ADEA. The district court granted summary judgment to Windstream and Ms. Bennett appealed. The Tenth Circuit applied the McDonnell Douglas test to evaluate Ms. Bennett’s discrimination claims. Ms. Bennett asserted that her termination was the adverse employment action resulting from discrimination. The Tenth Circuit found that Ms. Bennett failed to articulate discriminatory animus. Although Ms. Bennett claims that she was denied training opportunities given to younger, male technicians, the Tenth Circuit found record support that Ms. Bennett’s failure to report to work was the reason she did not receive training. Ms. Bennett also claims that no other techs were required to check in, but Windstream presented evidence that all the techs were required to check in. The Tenth Circuit found Ms. Bennett failed to establish a prima facie case of gender or age discrimination. Further, Windstream articulated several legitimate, non-discriminatory reasons for the practices about which Ms. Bennett complained.

Ms. Bennett also asserted a Title VII retaliation claim, which the Tenth Circuit quickly dismissed based on its analysis of her gender and age discrimination claims. Similarly, the Tenth Circuit dismissed Ms. Bennett’s claims under the Oklahoma Anti-Discrimination Act. The Tenth Circuit also rejected her constructive discharge claim, finding she neither showed Windstream engaged in any discriminatory conduct, nor that such conduct was so egregious that she had no choice but to resign.

The district court’s grant of summary judgment to Windstream was affirmed.

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