April 22, 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.

Tenth Circuit: Bifurcation of Position Does Not Defeat Comparison for Employment Discrimination Claims

The Tenth Circuit Court of Appeals issued its opinion in Riser v. QEP Energy on Tuesday, January 27, 2015.

Kathy Riser, who was 50 years old in 2013, began working for Questar Exploration and Production Co. in 1997. In 2003, she became an Administrative Services Representative II, where she managed a fleet of 250 vehicles, performed facilities management duties, and managed construction projects in several states. She was the only Questar employee performing fleet management and facilities management duties. In 2010, QEP was spun off from Questar and became a separate entity. Based on the title of Ms. Riser’s job and not her actual duties, she was classified under the new employee classification system as a Grade 5 employee making $22.78 per hour or $47,382 annualized. Twice Ms. Riser requested that her title and salary be changed to reflect her actual duties, but her supervisor, Mr. Beach, would not respond.

In May 2011, QEP created a new position, “Fleet Administrator,” and had Ms. Riser craft a job description for the position based on her fleet management duties. The position was classified as a Grade 7 position with an annual salary of $62,000. QEP hired Matthew Chinn, a 39-year-old man, as Fleet Administrator in June 2011. Ms. Riser trained Mr. Chinn in fleet management duties until her termination in September 2011. QEP stated that Mr. Chinn took over Ms. Riser’s fleet management duties as well as other duties; however, Ms. Riser stated that she was in the process of implementing the new programs when Mr. Chinn was hired.

In August 2011, QEP began discussing creating a new “Facilities Manager” position and spoke with Jason Bryant, a 30-year-old man, about the position. QEP stated they were receiving complaints about Ms. Riser’s work overseeing a North Dakota construction project, but none of these complaints were conveyed to her during the time period and she continued to receive favorable reviews. QEP terminated Ms. Riser on September 8, 2011, stating her termination was due to her poor performance on the North Dakota construction project. She had not received any warning or been placed on suspension prior to her termination. QEP then hired Mr. Bryant as the facilities manager, classified as a Grade 7 employee and making $66,000 annually.

Ms. Riser brought suit against QEP in federal district court in Utah alleging: (1) pay discrimination under the EPA, Title VII, and ADEA; (2) failure to promote under Title VII and the ADEA; and (3) discriminatory discharge under Title VII and the ADEA. The district court granted summary judgment to QEP on all claims. Ms. Riser appealed the summary judgment on all but her failure to promote claim.

The Tenth Circuit found Ms. Riser’s claims to be precisely the sort of factual disputes that preclude summary judgment. On her EPA claims, the district court held that Ms. Riser had not established that her job was “substantially equal” to either Mr. Chinn’s or Mr. Bryant’s job, and also that even if she could establish a prima facie claim of discrimination, the pay scale was based on a gender-neutral system. The Tenth Circuit disagreed on both points, finding “the fact that a female employee performed additional duties beyond a male comparator does not defeat the employee’s prima facie case under the EPA.” The Tenth Circuit noted that QEP’s argument that Ms. Riser had no comparator was especially disingenuous, since her position was bifurcated to create the two jobs which were then given to younger men at a higher rate of pay. The Tenth Circuit similarly disposed of QEP’s argument that its pay scale was gender-neutral, as Ms. Riser’s pay was not based on her actual duties but rather those duties typically performed by people with her title. The Tenth Circuit likewise found merit to Ms. Riser’s Title VII and ADEA claims, since they had a lower burden of proof.

The Tenth Circuit affirmed the district court’s grant of summary judgment on Ms. Riser’s discriminatory discharge claims, finding these were not adequately briefed. In her opening argument, Ms. Riser did not argue that she satisfied her prima facie case, only that one existed. The Tenth Circuit concluded this argument was waived.

The district court’s summary judgment was affirmed in part, reversed in part, and remanded.