Opinion · Court of Appeals for the Tenth Circuit
Ford v. Jackson National Life
45 F.4th 1202
- Type
- Opinion
- Court
- Court of Appeals for the Tenth Circuit
- Jurisdiction
- Federal
- Date
- 2022-08-23
- Topic
- bankruptcy
recognizing that a performance improvement plan, standing alone, is not an adverse employment action | holding that realignment of sales territory could not establish an adverse employment ac- tion in the absence of evidence showing that the plaintiff was affected in a way that her colleagues were not | holding that to show pretext, the plaintiff must establish that the employer's proffered reasons “were so incoherent, weak, inconsistent, or contradictory that a rational fact finder could conclude the reasons were unworthy of belief.” | stating that “a trial court may aggregate . . . but [is] not mandate[d to] do so” | noting that direct evidence of discrimination in the employment context “is usually im- possible to obtain” | noting that a PIP may be “an adverse employment action . . . if it effects a significant change in the plaintiffs employment status” | finding that a plaintiff failed to establish a dispute as to material fact because she offered no objective evidence to support her testimony | noting that “aggregation” of multiple forms of hostility is “permissible” and a trial court may consider two hostile work environment claims as a single claim or as separate claims | noting that a plaintiff “may only rely on evidence relating to harassment of which she was aware during the time she was allegedly subject to a hostile work environment” (citation omitted) | holding that aggregation is “permissible” but not required | holding that aggregation is “permissible” but not required | noting that a court may treat such claims separately or in the aggregate | stating that direct evidence of employment discrimination “is usually impossible to obtain” | noting that courts may aggregate two separate hostile work environment claims | applying the McDonnell Douglas framework to a case of alleged racial and gendered discrimination under Title VII | finding no direct evidence of discrimination despite racist comments by a company vice president because the plaintiff “identified no evidence that he refused to promote her because of her race or gender.” | applying McDonnell Douglas framework to Title VII discrimination and retaliation claims | personal beliefs without objective evidence of material disadvantage insufficient to create an issue of material fact | “[E]ven if others may have ‘praised’ Ford’s product knowledge, it does not follow that May’s reason for hiring another candidate—because he had ‘better product knowledge’— was pretextual.” | “Plaintiff’s subjective belief of discrimination was insufficient to preclude summary judgment.” (quotation cleaned up) | a prima facie case requires showing “circumstances giving rise to an inference of discrimination” | the use of subjective hiring criteria “[did] not allow” an inference of pretext where the defendant used “some objective measurements” in its hiring decision, such that it was not “wholly subjective” | “For a claim of race or sex discrimination, a prima facie case requires evidence that: (1) the victim belongs to a protected class; (2) the victim suffered an adverse employment action; and (3 | a plaintiff’s “personal belief is insufficient to create an issue of material fact” | comments about a month before termination not sufficient to show temporal proximity | comments about a month before termination not sufficient to show temporal proximity | comments about a month before termination not sufficient to show temporal proximity | “[A]n employer is liable for a claim of hostile work environment only if it knew, or should have known, about the hostile work environment and failed to respond in an appropriate manner.” (quotation and emphasis omitted) | plaintiff could reference old conduct even though it implicated a different perpetrator | comments about a month before termination not sufficient to show temporal proximity | comments about a month before termination not sufficient to show temporal proximity | comments about a month before termination not sufficient to show te
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Appellate Case: 21-1126 Document: 010110728403 Date Filed: 08/23/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 23, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
LA’TONYA FORD,
Intervenor Plaintiff - Appellant,
v. No. 21-1126
JACKSON NATIONAL LIFE
INSURANCE COMPANY; JACKSON
NATIONAL LIFE DISTRIBUTORS LLC;
JACKSON NATIONAL LIFE
INSURANCE COMPANY OF NEW
YORK,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:16-CV-02472-PAB-SKC)
_________________________________
David C. Japha (Evan J. House with him on the brief), of Levin Jacobson Japha, P.C.,
Denver, Colorado, for Plaintiff-Appellant.
Robert Hochman of Sidley Austin LLP, Chicago, Illinois (David A. Gordon and Martha
C. Clarke of Sidley Austin LLP, Chicago, Illinois; Heather Carson Perkins, Andrew J.
Ball, and Ellen E. Boshkoff of Faegre Drinker Biddle & Reath LLP, Denver, Colorado,
with him on the brief), for Defendants-Appellees.
_________________________________
Before MATHESON, PHILLIPS, and EID, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
Appellate Case: 21-1126 Document: 010110728403 Date Filed: 08/23/2022 Page: 2
La’Tonya Ford is an African-American woman who worked at Jackson
National Life Insurance (“Jackson”) for about four years. During her time there, Ford
allegedly suffered sex- and race-based discrimination; faced retaliation for
complaining about her treatment; endured a hostile work environment; and was
constructively discharged. After she left Jackson for another job, Ford sued the
company for (1) discrimination; (2) retaliation; (3) hostile work environment; and
(4) constructive discharge.
Jackson moved for summary judgment. The district court granted Jackson’s
motion and dismissed all of Ford’s claims. Ford now appeals, urging us to reverse the
court on each claim. Exercising jurisdiction under 28 U.S.C. § 1291
, we affirm the
dismissal of her discrimination claim. But we reverse in part the dismissal of her
retaliation claim; her hostile-work-environment claim; and her constructive-discharge
claim.
BACKGROUND
I. Factual Background
In 2006, Ford was hired as an internal wholesaler at Jackson’s Atlanta office.
In 2007, after the Atlanta office was closed, Ford transferred to Jackson’s Denver
office.
In early 2008, Jackson held an off-site work party. It was held at the home of
John Poulsen, one of Jackson’s regional directors. At least twenty other Jackson
employees attended the party. Ford alleges that during the party, Poulsen told her to
“get on your knees,” placed a vodka bottle in his pelvic region, and then started
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“thrusting the bottle.” Appellant R. vol. 2 at 289. Ford admits that she did not report
this incident to Jackson’s HR department. See Appellant R. vol. 3 at 365 (“[I]t didn’t
make any sense for me to go HR and complain again[.]”). But she believes that this
type of behavior was emblematic of the hostile work environment she had to endure
at the company.
In 2009, Ford was promoted from an internal wholesaler to a business
development consultant. Between July 2009 and September 2010, Ford applied to fill
any of eleven higher-ranking positions.1 She applied once to be a director of
advanced planning, twice for a desk-director position, and eight times for an external-
wholesaler position—a highly coveted position within Jackson. For most of these
positions, she made the shortlist and was interviewed. See Supp. R. at 132–33; see
also Appellant R. vol. 3 at 676 (internal email stating that Ford was on the shortlist
for an external-wholesaler position). But each time, Jackson chose someone else.
Jackson attributed Ford’s lack of success to her not interviewing as well as the
other candidates. But Ford thought something more nefarious was going on—she
believed she was being discriminated against based on her race and gender.
On September 10, 2009, Ford’s then-supervisor, Corey Walker, placed her on
a performance improvement plan (“PIP”). The PIP charged Ford with certain
1
The record is imprecise on the number of promotional positions Ford applied
to. On appeal, Ford claims she wasn’t promoted “on some eleven different occasions,
including eight [external wholesaler] positions.” Opening Br. at 13. But in her
interrogatory response, Ford states that she applied to twelve promotional positions,
nine of which were external-wholesaler positions. We assume that she applied to
eight external wholesaler positions and eleven higher-ranking positions.
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performance deficiencies, such as “failing to meet her talk time requirement, being
unwilling to help her peers, and failing to complete management requests.” Appellant
R. vol. 2 at 429.
The next day, in response to receiving the PIP, Ford submitted a four-page
complaint to Jennifer Amsberry, who worked in Jackson’s HR department. The
complaint alleged that Walker had treated Ford unfairly and outlined other
inappropriate conduct at Jackson. For instance, Ford alleged that Walker had allowed
his team to have “racial and sexual discussions without reprimand” and had created
an “unfair work environment that is prejudic[ial].” Supp. R. at 147.
To address Ford’s complaint, Gary Stone (the head of Jackson’s HR
department who worked in Jackson’s Michigan office) and Amsberry spent about two
months investigating Ford’s allegations. In November 2009, Stone and Amsberry
concluded their investigation, finding that Ford hadn’t been discriminated or
retaliated against. Nor did they find that she was subject to a hostile work
environment. Still, Stone wanted Ford to have a “fresh start” and agreed to rescind
the PIP and to give her a new supervisor. Appellant R. vol. 2 at 430.
Robert Blanchette became Ford’s supervisor. Ford shared with Blanchette that
people on her team would often act inappropriately towards her. For example, Ford
told Blanchette that her male coworkers would talk about her breasts and throw
things at her. Based on what Ford had told him, Blanchette advised Walker “to watch
this [situation] a little more closely.” Appellant R. vol. 3 at 588. But Walker said that
Ford was “making a big deal out of nothing.” Appellant R. vol. 3 at 588.
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On December 7, 2009, Ford submitted a formal complaint to the Equal
Employment Opportunity Commission (“EEOC”). She alleged that Jackson had not
promoted its minority employees at the same rate as its non-minority counterparts,
that she experienced a hostile work environment, and that she was being retaliated
against for complaining about this behavior.
Ford listed examples of the improper treatment she was receiving. These
included: (1) her not receiving performance-based awards and benefits; (2) her not
being promoted to higher-ranking positions; and (3) her being singled out by Walker
for unfair treatment. Ford also alleged that Walker allowed workers to have “openly
racist and sexual discussions.” Appellant R. vol. 4 at 950. As examples, she said that
after Barack Obama was elected president, her coworkers made comments such as
“Watermelon is going to be on sale,” and “Chevy Impalas will be discounted.” Id.
She also alleged that Walker allowed Alex Crosby, one of her coworkers, to share pornographic images with the team, and he allowed Crosby to ask Ford sexually explicit questions, such as “How big are your boobs?” and “What size bra do you wear?”—without reprimand.Id.
Finally, she alleged that, after she complained about
this behavior, Walker retaliated against her by placing her on a PIP and unfairly
scrutinizing her work.
Sometime in late 2009, James Bossert, one of Jackson’s vice-presidents,
ordered Blanchette to give Ford a negative evaluation. Blanchette testified that the
negative evaluation was Jackson’s way of “building a case” against Ford. Appellant
R. vol. 3 at 584. According to Blanchette, Bossert thought that Ford “was more
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trouble than she’s worth in this organization, and she’s not going to be promoted to
an external [wholesaler],” so it would be better to “figure out how to get rid of her.”
Appellant R. vol. 3 at 578. Indeed, Blanchette testified that during a meeting
discussing potential candidates for an external-wholesaler position, when someone
mentioned Ford’s candidacy, Bossert laughed and said, “Let her try.” Appellant R.
vol. 3 at 587. Despite Bossert’s instructions, Blanchette declined to give Ford a
negative evaluation, instead evaluating Ford’s work as “meet[ing] expectations.” See
Appellant R. vol. 2 at 352. Ford agreed that this evaluation was appropriate.
Blanchette also testified that Bossert wanted him to fire Ford and another
African-American, female employee, Kimberly Funchess. Appellant R. vol. 3 at 580
(“Q: He instructed you to actually terminate them? A: He did.”). Blanchette refused.
In January 2010, two vice-presidents who reported to Bossert, Paul Fitzgerald
and Jack Mishler, met with Blanchette. Fitzgerald and Mishler told Blanchette that he
wasn’t “a leader because [he] refused to get rid of Funchess and Ford.” Appellant R.
vol. 3 at 579. They insinuated to Blanchette that he would be fired if he did not fire
Ford and Funchess.
In February 2010, Jackson fired Blanchette. Blanchette believes he was
terminated for not firing Ford and Funchess. After his firing, Blanchette testified
about the derogatory comments that he had heard Mishler, Fitzgerald, and Bossert
make about Ford and Funchess. For example, he testified that he heard Mishler call
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Ford and Funchess “Black bitches” and “Black Panthers.”2 Appellant R. vol. 3 at
581–82. Blanchette also testified that Bossert would call Ford and Funchess “resident
street walkers.”3 Appellant R. vol. 3 at 579.4
After Blanchette’s firing, Bossert was assigned as Ford’s supervisor. Ford
raised concerns with Stone that Bossert and Walker were treating her unfairly. For
example, she alleged that she had been denied a yearly merit award and promotions
because of her race and gender. Ford also believed that the territories that she had
cultivated were being unfairly reassigned to other coworkers, which negatively
affected her pay. She also complained that she was being asked to train her
colleagues more than were her white, male counterparts. Ford alleged that this added
training time also adversely affected her pay because it gave her less time to develop
her territories. Finally, Ford complained that Walker and Bossert were not giving her
timely quarterly evaluations, which affected her ability to improve. In May 2010,
Ford supplemented her EEOC charge with these same complaints.
2
Blanchette also testified that Bossert would call Funchess a “piece of shit.”
Appellant R. vol. 3 at 577.
3
Ford testified that she had learned from another employee that Bossert had
called her a “bitch[] from Atlanta” during a supervisors’ meeting. Appellant R. vol. 2
at 374.
4
The district court, without specification, stated that some of these statements
are “inadmissible hearsay.” Appellant R. vol. 4 at 920. But Jackson has
acknowledged that it “does not seek affirmance on that basis.” Response Br. at 19.
Instead, Jackson argues that these statements are neither direct nor circumstantial
evidence of discrimination. Id.
So we consider these statements only in those
contexts. We express no position on the merits of the district court’s hearsay ruling.
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On September 10, 2010, Bossert emailed Stone. Bossert noted his concern that
Ford had applied for another promotion. Bossert asserted his belief that Ford would
“leverage that position into an opportunity to work against the company’s interest by
furthering her complaint.” Appellant R. vol. 3 at 661. The relevant portion of the
email states:
She has posted for the vacant desk director position in RBD East. I firmly
believe that she would attempt to leverage that position into an
opportunity to work against the company’s interest by furthering her
complaint. That she continues to engage in behavior that clearly
demonstrates her inability to avoid a conflict of interest is troubling.
Appellant R. vol. 3 at 661. Stone responded to the email suggesting that Bossert
“should not express in e-mails sentiments like the one [he] expressed.” Appellant R.
vol. 2 at 563. Ford was ultimately not offered the position.
On September 15, 2010, Ford again supplemented her EEOC charge. She
continued to allege that she was being denied promotions, and that her less-qualified
white, male colleagues were being promoted over her. Ford also included added
allegations of the hostile work environment she had experienced at Jackson. These
included the vodka-bottle incident from January 2008; that in July or August 2010,
Crosby had told her that “he likes a ‘little milk or cream between my chocolate chip
cookies,’ referring to [her] breasts”; and that she had seen “sexually explicit and
discriminatory emails being exchanged between the white male Business
Development Consultants and Internal Wholesalers.” Appellant R. vol. 3 at 741.
In October 2010, Ford obtained an external-wholesaler position at a competing
company. So she gave Jackson her two-week notice. That same day, as Ford was
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getting ready to leave work, Crosby dared another Jackson employee, Andy Foy, to
throw at Ford a “Black Rock promotional football that had been defaced” by
replacing the “R” with a “C.” Appellant R. vol. 2 at 297. Foy threw the ball at Ford.
Ford notified Stone about the incident, telling him, “You haven’t done
anything to stop the discrimination. It’s only increased . . . . And so effective today, I
am no longer employed or going back to Jackson National.” Appellant R. vol. 2 at
441. In response, Stone flew to Denver and fired the two workers involved in the
incident. Jackson then held a meeting with the 400 people in the Denver office to
reinforce that such conduct would not be tolerated. Jackson’s president also wrote a
letter apologizing to Ford.
II. Procedural Background
In 2016, the EEOC sued Jackson. The complaint alleged that Jackson had
“engaged in unlawful discrimination” on the basis of race and sex. Appellant R. vol.
1 at 47–48. Multiple former employees, including Ford, intervened in the case.
In January 2020, the district court entered a consent decree. In exchange for
resolving all claims against it, Jackson agreed to pay monetary compensation to the
intervenors and other employees on behalf of whom the EEOC had sought relief.
Ford was the only party who did not join the consent decree. By declining to join,
Ford was allowed to individually pursue her claims against Jackson.
Jackson moved for summary judgment on Ford’s claims of discrimination,
retaliation, hostile work environment, and constructive discharge. The district court
granted Jackson’s motion and dismissed all of Ford’s claims. This appeal followed.
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DISCUSSION
I. Standard of Review
We review de novo a grant of summary judgment and apply the same standard
as the district court. Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 994
(10th Cir. 2019). This means we draw all reasonable inferences and resolve all factual disputes for the non-moving party. Litzsinger v. Adams Cnty. Coroner’s Off.,25 F.4th 1280, 1287
(10th Cir. 2022). We will affirm the grant of summary judgment only “if the
movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
II. Discrimination
Title VII prohibits employment discrimination based on “race, color, religion,
sex, or national origin.” Ricci v. DeStefano, 557 U.S. 557, 577
(2009). To succeed on this claim, a plaintiff “must prove that intent to discriminate based upon [the] plaintiff’s protected class characteristics was the determining factor for the allegedly illegal employment decision.” Sanchez v. Phillip Morris, Inc.,992 F.2d 244
, 246–47 (10th Cir. 1993) (emphasis in original); see also Jaramillo v. Colo. Jud. Dep’t,427 F.3d 1303, 1306
(10th Cir. 2005) (“[A] plaintiff must show that his employer
intentionally discriminated against him for a reason prohibited by the statute.”).
To prove a claim for discrimination, Ford may rely on either direct evidence of
discrimination or use the three-step burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792
(1973). Khalik v. United Air Lines,671 F.3d 1188, 1192
(10th Cir. 2012). Ford argues that she has evidence for both.
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A. Direct Evidence
“Direct evidence demonstrates on its face that the employment decision was
reached for discriminatory reasons.” Danville v. Reg’l Lab Corp., 292 F.3d 1246, 1249
(10th Cir. 2002). But evidence is direct only if it “proves the existence of a fact in issue without inference or presumption.” Fassbender v. Correct Care Sols., LLC,890 F.3d 875, 883
(10th Cir. 2018) (quoting Riggs v. AirTran Airways, Inc.,497 F.3d 1108, 1117
(10th Cir. 2007)). We note that in the employment context, this type of evidence is “usually impossible to obtain.” Twiggs v. Hawker Beechcraft Corp.,659 F.3d 987
, 1000 n.8 (10th Cir. 2011) (quoting Ostrowski v. Atl. Mut. Ins. Cos.,968 F.2d 171, 181
(2d Cir. 1992)).
Generally, “[c]omments in the workplace that reflect personal bias do not
qualify as direct evidence of discrimination unless the plaintiff shows the speaker had
decisionmaking authority and acted on his or her discriminatory beliefs.” Tabor v.
Hilti, Inc., 703 F.3d 1206, 1216
(10th Cir. 2013). And “discriminatory statements do not qualify as direct evidence if the context or timing of the statements is not closely linked to the adverse decision.”Id.
Ford points to Bossert’s derogatory statements as evidence of direct
discrimination. Recall, Blanchette testified that he had heard Bossert call Ford and
Funchess “resident street walkers,” Appellant R. vol. 3 at 579, and Ford had learned
that Bossert referred to her as a “Black bitch[] from Atlanta,” Appellant R. vol. 2 at
374. Ford also cites evidence that during a managerial meeting about external-
wholesaler positions, when Ford’s name came up as a possible candidate, Bossert
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laughed and said, “Let her try.” Appellant R. vol. 3 at 587. Ford argues that these
comments, combined with Bossert’s alleged refusal to promote her, evidenced direct
discrimination.
The district court disagreed for two reasons. First, it found that Ford “provides
no evidence that Mr. Bossert actually made any promotion decisions.” Appellant R.
vol. 4 at 914. And because “comments by those who were not decisionmakers are
irrelevant to [this] analysis,” the court discounted Bossert’s comments. Id.
(citing Tabor,703 F.3d at 1217
). Second, the district court concluded that even if Bossert
had decision-making authority, Ford’s proffered evidence would still not qualify as
direct evidence, because “Ford provides no direct evidence that he acted on his
beliefs.” Appellant R. vol. 4 at 915.
We need not consider the court’s first ground for dismissal5 because we agree
with its second: even if Bossert had decision-making authority, Ford’s evidence
would still be insufficient to establish direct evidence of discrimination. This is
because even though Bossert’s comments may reflect “personal bias,” Ford has
identified no evidence that he refused to promote her because of her race or gender.
Tabor, 703 F.3d at 1216
.
We have previously outlined what type of evidence does not qualify as direct
evidence of discrimination. In Fassbender, a plaintiff presented evidence that a
health-services administrator expressed frustration at the news that the plaintiff and
5
We discuss whether Ford has shown an issue of material fact about Bossert’s
decision-making authority below.
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another employee were pregnant. 890 F.3d at 879
. At some point, the administrator was heard telling her assistant, “I have too many pregnant workers. I don’t know what I am going to do with all of them.”Id.
(brackets omitted). After the plaintiff was later fired, she argued that the administrator’s negative comments about her employees’ pregnancies was direct evidence of discrimination.Id. at 883
.
We disagreed, explaining that because the administrator’s comments were
made “about a month before terminating” the plaintiff, there was no temporal
proximity between the comments and the plaintiff’s firing. See id.
Nor did the comments suggest that the plaintiff’s pregnancy had “somehow made her unqualified for her position.”Id.
So even though the comments may “reflect an animosity towards [a] protected group,” we ruled that they did not “‘demonstrate[] on [their] face that’ the decision-maker acted on this nefarious motive.”Id.
at 883–84 (quoting Danville,292 F.3d at 1249
).
We have also described what is needed to show direct evidence of
discrimination. In Tabor, a plaintiff interviewed for a job selling tools. 703 F.3d at 1213
. Her interviewer “explicitly stated a view that women have inferior knowledge of tools and inferior ability to sell tools.”Id. at 1217
. Because these statements “spoke directly to central requirements of the job for which [the plaintiff] was interviewing” and were made “during a discussion about her fitness for the position,” we held that there was a direct link between the statements and the decision not to promote the plaintiff.Id.
As a result, the plaintiff had provided direct evidence of discrimination.Id.
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The situation here is like Fassbender, not Tabor. First, Blanchette could not
describe the timing or contexts in which Bossert made derogatory comments about
Ford (and Funchess), such as their being “resident street walkers” and “Black
bitches.” Thus, unlike Tabor, no connection exists between these comments and the
adverse employment action. Nor do the comments reflect any belief that Bossert
thought that Ford’s race or gender “somehow made her unqualified for the position.”
Fassbender, 890 F.3d at 883
. So even though Bossert’s comments may “reflect an animosity” towards a protected group, as did the administrator’s comments in Fassbender, there is no evidence, “on its face,” that he acted on his discriminatory beliefs.Id.
at 883–84 (citation omitted). Our conclusion doesn’t change even when considering Bossert’s “Let her try” comment. That statement mentions neither Ford’s race nor her sex. Thus, the comment doesn’t “directly reflect[] the forbidden animus” needed for direct evidence of discrimination. See Twiggs,659 F.3d at 1000
n.8.
In sum, Ford has not produced direct evidence of discrimination. But this
doesn’t doom her claim. She may still rely on the McDonnell Douglas burden-
shifting framework to establish indirect evidence of discrimination.
B. Indirect Evidence
The McDonnell Douglas test proceeds in three steps. Fassbender, 890 F.3d at 884
. At the first step, the plaintiff must “raise a genuine issue of material fact on each element of the prima facie case, as modified to relate to differing factual situations.” Bekkem v. Wilkie,915 F.3d 1258, 1267
(10th Cir. 2019) (quoting Morgan v. Hilti, Inc.,108 F.3d 1319, 1323
(10th Cir. 1997)). For a claim of race or sex
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discrimination, a prima facie case requires evidence that: “(1) the victim belongs to a
protected class; (2) the victim suffered an adverse employment action; and (3) the
challenged action took place under circumstances giving rise to an inference of
discrimination.” EEOC v. PVNF, LLC, 487 F.3d 790, 800
(10th Cir. 2007) (stating standard for sex-based discrimination); Ibrahim v. All. for Sustainable Energy, LLC,994 F.3d 1193, 1196
(10th Cir. 2021) (stating standard for race-based
discrimination).
If the plaintiff establishes a prima facie case, at the second step, the burden
then “shifts to the employer to offer a legitimate nondiscriminatory reason for its
employment decision.” Bekkem, 915 F.3d at 1267
(quoting Morgan,108 F.3d at 1323
). If the employer makes this showing, at the final step, the burden shifts back to the plaintiff to demonstrate that the employer’s explanations were “pretextual—i.e., unworthy of belief.”Id.
(quoting Morgan,108 F.3d at 1323
).
Ford focuses her indirect-discrimination argument on two bases: (1) the failure
to promote her, and (2) the discriminatory “terms and conditions” of her employment
at Jackson. We address each in turn.
a. Failure to Promote
As for her failure-to-promote theory, Jackson concedes that Ford has satisfied
her prima facie case. See Response Br. at 23. So we move straight to the second step
of the McDonell Douglas analysis. Jackson must therefore articulate a legitimate,
nondiscriminatory reason for not promoting Ford. See Bekkem, 915 F.3d at 1267
.
Jackson explained that Ford was not promoted because other candidates “performed
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better” in interviews and were thus more qualified than her. Response Br. at 23. The
district court concluded that Jackson had met its burden.
We agree with the district court. For example, Jackson points to the
declarations of Robert Butler, Herbert May, and Greg Mahalich—all Jackson
officials who selected candidates for promotional positions and interviewed Ford.
Butler said that Ford was “unable to explain product specifications for a guaranteed
fixed product” as one reason she “did not perform as well as the other candidates [he]
interviewed.” Supp. R. at 150–51. May, on the other hand, explained that he did not
hire Ford because the other candidates “possessed better product knowledge and
outperformed Ms. Ford in role playing and presenting products.” Supp R. at 158.
May also said that he preferred candidates “with a strong connection to, and deep
knowledge of, the territory in question.” Supp. R. at 158. Finally, Mahalich said that
he hired one candidate over Ford, in part, because he felt that the candidate “was
better suited to that particular territory at that time than Ms. Ford,” given that the
candidate “demonstrated excellent product knowledge,” “was the most prepared of
the candidates [he] interviewed,” and “had the best understanding of what needed to
be done.” Appellant R. vol. 2 at 425. Mahalich added that he did not select Ford
because another external wholesaler with whom Ford worked closely, Chris
Silverstein, had told Mahalich that even though Ford “was excellent with mastering
the technical details of various products, she was not a strong salesperson.” Appellant
R. vol. 2 at 426. Indeed, when Mahalich asked Silverstein how much of Ford’s sales
contributed to his sale numbers, Silverstein “said not at all.” Id.
These explanations
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are all nondiscriminatory reasons for not promoting Ford. Thus, Jackson has satisfied
its burden at the second step of the McDonnell Douglas framework.
So we move to the last step in the McDonnell Douglas analysis: pretext. To
show pretext, the plaintiff must establish that the employer’s proffered reasons “were
so incoherent, weak, inconsistent, or contradictory that a rational factfinder could
conclude the reasons were unworthy of belief.” Bekkem, 915 F.3d at 1267
(quoting Young v. Dillon Cos.,468 F.3d 1243, 1250
(10th Cir. 2006)). But “[m]ere conjecture that the employer’s explanation is pretext[ual]” cannot defeat summary judgment.Id.
(quoting Morgan,108 F.3d at 1323
).
Ford first argues that a reasonable jury could find that Jackson’s explanations
for hiring other candidates were pretextual. As an example, she points out that May
“faulted Ms. Ford on her product knowledge, even though almost everyone, including
Bossert, praised Ms. Ford’s product knowledge.” Opening Br. at 15–16. But even if
others may have “praised” Ford’s product knowledge, it does not follow that May’s
reason for hiring another candidate—because he had “better product knowledge”—
was pretextual. Supp. R. at 158. Ford does not explain why May could not have
believed this assessment in good faith. See Jaramillo, 427 F.3d at 1309
(finding that
a jury could not find pretext based on an employer’s explanation that another
candidate was more qualified because the employer “could have believed in good
faith that [another candidate] was at least as well qualified as” the plaintiff). Nor does
she explain how May’s reason was weak, incoherent, inconsistent, or contradictory in
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any way. Id. at 1308
. As a result, we see no reason why May’s explanation for hiring someone other than Ford was “unworthy of credence.”Id.
Ford also argues that Mahalich’s reason for not choosing Ford because another
candidate was “better suited to that particular territory” is “insufficient as a matter of
law to justify summary judgment in Jackson’s favor.” Opening Br. at 16. First, Ford
misconstrues the evidence. This was not Mahalich’s only reason for choosing another
candidate over Ford. He also said that the candidate he selected “was the most
prepared,” “demonstrated excellent product knowledge,” and “had the best
understanding of what needed to be done.” Appellant R. vol. 2 at 425. Mahalich also
said that Ford “was not a strong salesperson.” Appellant R. vol. 2 at 426. Second,
Ford does not explain why any of these reasons are “insufficient as a matter of law to
justify summary judgment in Jackson’s favor”—she merely cites Jaramillo without
explanation. See Opening Br. at 16. But because Jackson articulated a
nondiscriminatory reason for not promoting Ford, it was Ford’s burden to show that a
reasonable jury could find that Mahalich’s reasons for not promoting Ford were not
worthy of belief. She has not met that burden.
Still, Ford offers several other reasons why Jackson’s reasons for not
promoting her were pretextual. First, she argues that statistical evidence of Jackson’s
discriminatory practices demonstrates pretext. Second, she contends that Jackson’s
use of amorphous interviewing criteria also suggests pretext. Third, she argues that
she was more qualified than any of the other candidates that were hired over her. We
address each piece of evidence in turn.
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i. Statistics
“It is uniformly recognized that statistical data showing an employer’s pattern
of conduct toward a protected class can create an inference that an employer
discriminated against individual members of the class.” Timmerman v. U.S. Bank,
N.A., 483 F.3d 1106, 1114
(10th Cir. 2007) (quoting Fallis v. Kerr–McGee Corp.,944 F.2d 743, 746
(10th Cir. 1991)). But not all statistical evidence is created equal. “Statistics taken in isolation are generally not probative of . . . discrimination.” Jones v. Unisys Corp.,54 F.3d 624, 632
(10th Cir. 1995). And we have said that when statistical evidence is “so flawed,” it will be “insufficient to raise a jury question.” Doan v. Seagate Tech., Inc.,82 F.3d 974, 979
(10th Cir. 1996). Ford argues that between 2007 and 2010, 41 internal wholesalers were promoted to external wholesalers. Of those 41, 38 were white males, “2 were African American males, 1 was a white woman, and zero were African American females.” Opening Br. at 17 (citing Appellant R. vol. 3 at 763). Ford also contends that the data shows that between 2007 and 2017, “no new female African Americans hires were promoted to [external wholesaler].”Id.
Having reviewed Ford’s statistical data, we conclude that it is insufficient to
raise a jury question. See Doan, 82 F.3d at 979
. “[F]or statistical evidence to create an inference of discrimination, the statistics must show a significant disparity and eliminate nondiscriminatory explanations for the disparity.” Turner v. Pub. Serv. Co. of Colo.,563 F.3d 1136, 1147
(10th Cir. 2009) (emphasis added) (quoting Fallis,944 F.2d at 746
). Ford’s evidence does not cross this threshold. First, Ford’s numbers
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“fail to provide any information regarding whether the decision not to hire [her], and
that decision alone,” involved discrimination. Id.
(emphasis added). This is because her statistical evidence fails to account for other important variables such as “job performance, experience, and training.” Sanders v. Sw. Bell Tel., L.P.,544 F.3d 1101, 1110
(10th Cir. 2008) (“Because the statistics fail to account for these variables, they
do not constitute evidence of pretext.”).
Second, we cannot infer pretext from a lack of African-American females
being promoted to external-wholesaler positions between 2007 and 2017 and a lack
of African-American females in internal-wholesaler positions being promoted to
external-wholesaler positions between 2007 and 2010. As Jackson rightfully points
out, Ford fails to “even identify a subset of individuals who applied” for these
positions. Response Br. at 30. Without some “evidence regarding the number of . . .
applicants, interviewees, and the like, the employment statistic is nearly
meaningless.” Turner, 563 F.3d at 1147
; see also LeBlanc v. Great Am. Ins. Co.,6 F.3d 836, 848
(1st Cir. 1993) (“[A] company’s overall employment statistics will, in
at least many cases, have little direct bearing on the specific intentions of the
employer when dismissing a particular individual.”).
Still, Ford argues that her statistics are meaningful because the fact that no
member of a protected group has ever occupied a particular position suggests
discrimination. This may be true “[u]nder certain circumstances.” See Marion v.
Slaughter Co., 202 F.3d 282
(10th Cir. 1999) (table decision). But we have also
rejected statistical evidence that shows “prolonged and marked imbalance . . . where
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a legitimate reason for the employer’s action is present.” Turner, 563 F.3d at 1147
(quoting Bauer v. Bailar,647 F.2d 1037, 1045
(10th Cir. 1981)).
For example, in Turner, a plaintiff argued that she was discriminated against.
Id. at 1142
. To support her claim, the plaintiff cited statistics that “from 1992 to 2005, no women were hired for entry-level positions at [her company] but twenty men were.”Id. at 1146
. We held that this evidence did not create an inference of discrimination, in part, because the plaintiff failed to acknowledge that when the company was hiring candidates, “the hiring pool included only two women.”Id. at 1148
. Here, Ford fails even to identify the number of people in the hiring pool. Thus, without some “evidence regarding the number of . . . applicants, interviewees, and the like,” we can’t infer discrimination.Id. at 1147
.
In sum, no reasonable jury could infer pretext based on Ford’s statistical data.
ii. Subjective Criteria
Next, we consider whether Jackson’s use of “amorphous” hiring criteria
creates a triable issue of fact of pretext. To start, “a plaintiff cannot prove that [she]
was discriminated against simply because an employment decision was based on
subjective criteria.” Cortez v. Wal-Mart Stores, Inc., 460 F.3d 1268, 1275
(10th Cir. 2006). “We have long respected employers’ wide latitude ‘in setting job standards and requirements and in deciding whether applicants meet those standards.’”Id.
(quoting Hickman v. Flood & Peterson Ins., Inc.,766 F.2d 422, 425
(10th Cir. 1985)). And “some subjectivity is to be expected in every hiring decision.” Conroy v. Vilsack,707 F.3d 1163, 1177
(10th Cir. 2013) (emphasis in original).
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This is not to say that the use of subjective hiring criteria cannot be evidence
of pretext. It can be. See Santana v. City & Cnty. of Denver, 488 F.3d 860, 866
(10th Cir. 2007) (“[E]vidence of pretext may include the use of subjective criteria.”). But “we ‘typically’ will infer pretext from the employers’ use of subjective evaluation criteria in the hiring process ‘only when the criteria on which the employers ultimately rely are entirely subjective in nature.’” Conroy,707 F.3d at 1178
(emphasis in original) (quoting Jones v. Barnhart,349 F.3d 1260
, 1267–68 (10th Cir.
2003)).
Jackson has given some objective measurements for hiring candidates over
Ford. For example, May preferred candidates “with a strong connection to, and deep
knowledge of, the territory in question.” Supp. R. at 158. Selecting candidates based
on their familiarity with an area is an objective criterion. As another example,
Mahalich chose not to hire Ford, in part, because he was told that she “was not a
strong salesperson.” Appellant R. vol. 2 at 426. This evaluation was not entirely
subjective, given that the person who would be most knowledgeable about Ford’s
measurable sales numbers made that assessment. Finally, Butler chose not to hire
Ford because she was “unable to explain product specifications for a guaranteed
fixed product” as well as other candidates. Supp. R. at 150. That this skill “did not
elicit measurable data” does not render the process wholly subjective. See Turner,
565 F.3d at 1146 (citing Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1195
(10th Cir. 2006) to explain that an evaluation process which included
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“subjective considerations” such as “team building, personal leadership, and personal
accountability,” did not render the process “wholly subjective”).
In sum, Jackson’s use of subjective hiring criteria does not allow us to infer
pretext.
iii. Ford’s Qualifications
Finally, Ford argues that she was “the most qualified candidate.” Opening Br.
at 17. Thus, she contends that any refusal to promote her must have been
discriminatory.
Generally, we will infer pretext based on a comparison between a plaintiff’s
qualifications and those of successful applicants only when the plaintiff demonstrates
an “overwhelming merit disparity.” Santana, 488 F.3d at 865
(internal quotations and citation omitted). Put differently, we will infer pretext only when the plaintiff can “assure us that the plaintiff is better qualified than the other candidates for the position.”Id.
(emphasis added) (quoting Barnhart,349 F.3d at 1267
). Minor differences in qualifications will not demonstrate pretext because “it is not our role to act as a super personnel department that second guesses employers’ business judgments.”Id.
(internal quotations and citation omitted).
Importantly, an employee’s own belief that she was the most qualified
candidate for a position is not enough to show pretext. Hall v. Forest River, Inc., 536 F.3d 615, 620
(7th Cir. 2008) (“[A]n employee’s own subjective belief that she is . . . more qualified than another applicant is insufficient.”); Rowell v. Bellsouth Corp.,433 F.3d 794, 799
(11th Cir. 2005) (“Rowell’s personal belief that he was more
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qualified is not sufficient to demonstrate discriminatory intent.”). A plaintiff must do
more than offer “mere self-serving appraisals.” Hall, 536 F.3d at 620
(quoting Nichols v. S. Ill. Univ.-Edwardsville,510 F.3d 772, 784
(7th Cir. 2007)).
Yet that is precisely the type of evidence that Ford mostly relies on. For
example, she repeatedly points to exchanges in her own deposition testimony in
which she merely declares that she’s more qualified than other candidates. Take the
following exchange from her deposition:
Q: Sure. Did you compare your qualifications to the three people who got
those positions?
A: Yes.
Q: And did you feel you were more qualified than them?
A: Yes.
Q: And what was the basis of your reason for that conclusion?
A: I’m pretty sure the basis had to be my license designations, my
experience dealing with clients, my experience in the industry, and also
my experience at Jackson National.
Appellant R. vol. 2 at 491. The problem for Ford is obvious—despite her claims that
she was more experienced, she presents no objective evidence of this fact. Ford
doesn’t explain how her license designations were superior to those of other
candidates, how she knows that she had more experience with clients, or how any of
the other candidates’ experiences in the industry were inferior to hers. At bottom, she
merely believes that she is more experienced. But without some objective evidence to
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compare, there is no way for us to decide whether she truly had an “overwhelming
merit disparity.” Santana, 488 F.3d at 865
(internal quotations and citation omitted).
Now take this other exchange:
Q: And relatively speaking, what were Tom’s credentials as compared to
yours?
A: Like I said, I had more experience. So it would be more experience in
the financial services industry than Tom had.
Q: How much more experience did you have than Tom?
A: I don’t know, but I know I had a lot more experience than he did.
Q: How did you know that?
A: Because I did the calculations when I looked at his FINRA report and
my FINRA report, and it shows the time periods in which he worked and
the time period in which I worked, and it also showed when he obtained
his series licenses and when I obtained my . . . series licenses.
Appellant R. vol. 2 at 482.
The same problem exists here. Once again, Ford offers no objective evidence
for us to conclude that she had more experience than this candidate. Simply claiming
so—without supporting evidence—is insufficient to create a triable issue of material
fact.
We cannot simply take an employee at his or her word. In Jones v. Denver
Post Corp., 203 F.3d 748
(10th Cir. 2000), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan,536 U.S. 101
(2002), we rejected a plaintiff’s
discrimination claim because she “produced only generic and conclusory testimony
to support this allegation” that was “devoid of any specific instances of disparate
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treatment.” Id. at 756; see also Wheeler v. BNSF Ry. Co., 418 F. App’x 738, 751
(10th Cir. 2011) (rejecting retaliation claim because the plaintiff “failed to provide
the district court with sufficient objective evidence to support this allegation”).
The same flaw permeates much of Ford’s cited evidence. Even if she does
have “a master’s degree, FINRA certifications, numerous accolades, awards, and
overall experience in the field,” Reply Br. at 6–7, without objective documentation of
her colleagues’ qualifications to compare to hers, Ford cannot “assure us” that she is
more qualified than the other candidates, Santana, 488 F.3d at 865
(quoting Barnhart,349 F.3d at 1267
).
Still, Ford argues that she does not rely only on her own opinions—she also
points to the opinions of others. For example, she identifies the opinion of one of her
supervisors, Brian Lane, who testified that Ford “was the most qualified person.”6
See Appellant R. vol. 3 at 614. And another one of her supervisors, Jeffrey Bauer,
also said that she was “probably one of [the] best internal wholesalers that [he had]
worked with.” Appellant R. vol. 3 at 695. Ford contends that this evidence proves
that she was indeed the most qualified candidate.
6
Ford does cite deposition testimony from Lane, who stated that one worker
was promoted over Ford even though “he did not go through any of the training
programs that were in place at the time” and he did not “have any of the
qualifications that she had for that position.” Appellant R. vol. 3 at 613. But even
accepting Lane’s statement as true, Ford has still not presented sufficient evidence of
pretext. This is because we, again, have no way to compare this candidate’s
qualifications to Ford’s. Simply stating that she was more qualified is insufficient.
With “no objective evidence” of this allegation, Ford’s claim cannot overcome
summary judgment. See Denver Post, 203 F.3d at 756
.
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It does not. In Denver Post, a plaintiff provided evidence from similarly
situated employees who believed that the plaintiff was being unfairly treated. 203 F.3d at 756
. Still, we upheld the dismissal of her claim because there was “no objective evidence of disparate treatment in the record.”Id.
And in any event, Lane’s
and Bauer’s opinions about Ford demonstrate only that she was a strong candidate.
But that fact has never been disputed. Indeed, Ford repeatedly made the shortlist and
interviewed for many of these higher-ranking positions. But her supervisors’
subjective belief that she “was the most qualified person” and “one of [the] best
internal wholesalers” bears no insight into whether the other chosen candidates were
viewed the same way.
With all this mind, Ford hasn’t established such an “overwhelming merit
disparity” over every other candidate. Santana, 488 F.3d at 865
(internal quotations and citation omitted). Thus, no reasonable jury could find that Jackson “didn’t really believe its proffered reasons for action and thus may have been pursuing a hidden discriminatory agenda.” Johnson v. Weld Cnty.,594 F.3d 1202, 1211
(10th Cir.
2010).
In sum, Ford has failed to demonstrate that Jackson acted with discriminatory
intent in failing to promote her. So we affirm the district court’s dismissal of this
claim on this theory.
b. Terms and Conditions of Employment
We turn now to Ford’s argument that she was also discriminated against based
on the terms and conditions of her employment. She argues: (1) that her supervisors
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continually reassigned her territories to others and required her to train her
colleagues, lowering her earning potential, and (2) that her supervisors treated her
unfairly by giving her untimely or missed quarterly evaluations.
i. Territory Assignments and Training
Ford contends that “Jackson manipulated its territories to [her] detriment so
that her earning potential was unfairly decreased.” Opening Br. at 20. According to
Ford, Jackson would give territories that she had cultivated to her white, male
coworkers, while giving her “less productive territories.” Id. at 21. She also
complains that Jackson forced her to “spend time training her coworkers” instead of
“growing her business,” which also lowered her earning potential. Id.
Jackson concedes that Ford’s territories were realigned. But it explains that
any realignment was due to a surge in work brought in from Merrill Lynch. This
added responsibility led Jackson to add twelve new business-development
consultants. So Jackson needed to “realign Ford’s territory to accommodate these
new [business development consultants].” Response Br. at 32. The district court
concluded that, even if the reassignment of Ford’s territories constituted an adverse
employment action, Ford had “again failed to show that Jackson’s rationale for
changing its territories was pretextual.” Appellant R. vol. 4 at 924.
We agree with the district court’s conclusion, but for a different reason—we
conclude that Ford hasn’t produced sufficient evidence that the realignment of her
territories amounted to an adverse employment action. Thus, Ford hasn’t made a
prima facie case of employment discrimination based on the realignment of her
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territories. See PVNF, 487 F.3d at 800
(identifying the prima facie elements as:
“(1) the victim belongs to a protected class; (2) the victim suffered an adverse
employment action; and (3) the challenged action took place under circumstances
giving rise to an inference of discrimination”).
We acknowledge that Ford’s burden at the prima facie stage “is not onerous.”
Orr v. City of Albuquerque, 417 F.3d 1144, 1152
(10th Cir. 2005). We also recognize that an adverse employment action is not limited to “monetary losses in the form of wages or benefits.” Jones v. Okla. City Pub. Schs.,617 F.3d 1273, 1279
(10th Cir. 2010) (quoting Sanchez v. Denver Pub. Schs.,164 F.3d 527, 532
(10th Cir. 1998)). But at the same time, “a mere inconvenience or an alteration of job responsibilities” does not qualify.Id.
(quoting Sanchez,164 F.3d at 532
). Generally, an adverse employment action is a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”Id.
(quoting Hillig v. Rumsfeld,381 F.3d 1029
, 1032–33 (10th Cir. 2004)).
Here, Ford lacks “objective evidence of material disadvantage.” Wheeler, 418 F. App’x at 751
(citation omitted); see also Denver Post,203 F.3d at 756
(rejecting
discrimination claim because the plaintiff failed to produce “objective evidence of
disparate treatment”). Even assuming her salary was indeed negatively affected by
the realignments, she presents no evidence to support her allegation beyond her own
affidavit and deposition transcript to show that her white, male colleagues’ salaries
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weren’t also adversely affected.7 For example, when explaining how her territories
were taken away, Ford states: “I feel that those individuals were given territories that
I actually grew and given me the less portion of that territory that had no sales
coming in.” Appellant R. vol. 2 at 507 (emphasis added). But her personal belief is
insufficient to create an issue of material fact. See Aramburu v. Boeing Co., 112 F.3d 1398
, 1408 n.7 (10th Cir. 1997) (citing Hanson v. City of Okla. City,37 F.3d 1509
(10th Cir. 1994) (table opinion) to note that “plaintiff’s subjective belief of
discrimination was insufficient to preclude summary judgment”).
In any event, even if Ford had presented a prima facie case, she has failed to
demonstrate pretext. This is because Ford has not sufficiently shown that Jackson’s
reason for reassigning Ford’s territories—to accommodate the new business-
development consultants—was “so incoherent, weak, inconsistent, or contradictory
that a rational factfinder could conclude the reasons were unworthy of belief.”
Bekkem, 915 F.3d at 1268
(quoting Young,468 F.3d at 1250
).
For the same reasons, Ford has failed to present either a prima facie case or
evidence of pretext that she was being unfairly required to train her colleagues. As
Jackson explains, “training and mentoring were part of [Ford’s] responsibilities after
being elevated to [business-development consultant].” Response Br. at 32. Outside of
her own affidavit and deposition again, Ford presents no evidence that she was being
7
When asked about her basis for alleging that “sales territories were not
adjusted for White males,” Ford merely asserts “[v]isual observation” based on
internal emails. Appellant R. vol. 2 at 508. Yet she fails to direct us to this evidence
in any of her briefing.
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asked to train other employees at a higher rate than her white, male coworkers.
Indeed, she merely asserts that she “noticed that this did not happen to [her] white
and male colleagues.” Appellant R. vol. 2 at 468 (emphasis added). But this evidence
lacks “objective evidence of material disadvantage.” Wheeler, 418 F. App’x at 751
(citation omitted). Thus, a jury could not have reasonably found that Ford’s training requirements “constituted [a] materially adverse action.”Id.
Even accepting her prima facie case, Ford fails to explain why Jackson’s reason for having her train her colleagues—it’s an aspect of her job—was “unworthy of belief.” Bekkem,915 F.3d at 1268
(quoting Young,468 F.3d at 1250
).8
In sum, Ford has failed to show that the realignment of her territories or her
requirement to train others was discriminatory. We affirm the dismissal of her
discrimination claim on these theories.
ii. Untimely Evaluations
Ford contends that Walker gave her late quarterly evaluations as compared to
those given to her white, male coworkers. Or he would fail to evaluate her altogether.
8
Ford contends that her unfair treatment was so obvious that even her other
supervisor, Lane, noticed. See Opening Br. at 22. But Ford takes this evidence out of
context. True, Lane did state that he believed that Walker was unfairly evaluating
Ford. Appellant R. vol. 3 at 619 (“Q: Do you believe that Mr. Walker was fairly
evaluating Ms. Ford? A: No.”). But Lane’s statement had nothing to do with the
realignment of Ford’s territories, or her being asked to train her colleagues. Instead,
Lane made this statement in relation to Walker’s decision to give an award to another
worker over Ford. See Appellant R. vol. 3 at 620 (Lane explaining that Walker
“really wanted Jeremiah to win this particular award but never was able to
necessarily articulate what it was, the why other than that’s who he wanted”). As a
result, this evidence has little bearing on pretext for this claim.
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Ford argues that her delayed evaluations let her coworkers get a head start on what
they needed to improve upon, while she fell behind.
The district court found that these untimely or missing evaluations did not
even amount to an adverse employment action. Thus, Ford failed to establish a prima
facie case of discrimination.9
As stated above, an adverse employment action must amount to more than “a
mere inconvenience or an alteration of job responsibilities.” Jones, 617 F.3d at 1279
(quoting Sanchez,164 F.3d at 532
). Thus, it generally requires a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”Id.
(quoting Hillig, 381 F.3d at 1032–33).
On this ground, Ford has failed to demonstrate that she suffered an adverse
employment action. First, she has provided insufficient evidence that she received
later evaluations than her coworkers—she cites only her deposition without any other
supporting evidence. Once again, this is insufficient to create an issue of material
fact. See Denver Post, 203 F.3d at 756
(rejecting discrimination claim because the plaintiff had produced “no objective evidence of disparate treatment in the record”); see also Wheeler,418 F. App’x at 751
(dismissing claim because the plaintiff “failed
9
The court later found that even if it accepted that these untimely evaluations
qualified as an adverse employment action, Ford had still failed to show that
Jackson’s explanations were pretextual. We need not analyze whether the court’s
conclusion was correct because, as we will explain, Ford hasn’t satisfied her burden
at the first step of the McDonnell Douglas analysis.
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to provide the district court with sufficient objective evidence to support this
allegation” because “the only evidence she cited in support of this allegation was her
own deposition transcript” (emphasis added)).
Even ignoring Ford’s lack of evidence, she doesn’t explain how her coworkers
being given quarterly evaluations before her amounts to anything more than “a mere
inconvenience.” Jones, 617 F.3d at 1279
(quoting Sanchez,164 F.3d at 532
). Nor does she describe how these untimely or missed evaluations caused a “significant change in employment status.”Id.
(quoting Hillig, 381 F.3d at 1032–33). As a result,
we agree with the district court that she has failed to make out a prima facie case of
discrimination.
In sum, we affirm the district court’s dismissal of Ford’s discrimination claim.
III. Retaliation
Next, we consider the district court’s dismissal of Ford’s retaliation claim.
Like a claim for discrimination, a plaintiff may prove retaliation by either direct
evidence or through the McDonnell Douglas burden-shifting framework. See Hinds v.
Sprint/United Mgmt. Co., 523 F.3d 1187, 1201
(10th Cir. 2008).
Here, Ford argues that she has presented a prima facie case of retaliation. So
we consider her arguments under the McDonnell Douglas framework. To establish a
prima facie case, “an employee must establish (1) he or she 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
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protected activity and the materially adverse action.” Piercy v. Maketa, 480 F.3d 1192, 1198
(10th Cir. 2007).
Jackson doesn’t contest that Ford “engaged in protected opposition to
discrimination.” Id.; see Response Br. at 36. So we proceed to the next two elements:
the adverse employment action and causation. Ford points to three employment
actions: (1) the failure to promote her; (2) receiving the PIP; and (3) the realignment
of her territories. See Opening Br. at 26, 29. We consider each in turn.
A. Failure to Promote
The district court rejected Ford’s failure-to-promote claim for the same
reasons that it rejected her discrimination claim—that she had failed to show pretext.
See Appellant R. vol. 4 at 928 (“The Court has already explained that Ms. Ford has
failed to prove pretext in Jackson’s promotion decisions, and, therefore, the Court
need not re-address Ms. Ford’s retaliatory failure-to-promote claims.”).10
We disagree with the district court. The failure of a discrimination claim is not
necessarily fatal to a retaliation claim. Indeed, we have said that “[a] meritorious
retaliation claim will stand even if the underlying discrimination claim fails.”
Sanchez, 164 F.3d at 533
.
One key piece of evidence differentiates Ford’s retaliation claim from her
discrimination claim: the September 2010 email exchange between Bossert and
10
Neither party appears to dispute the first or second step of the McDonnell
Douglas analysis.
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Stone. Recall, Bossert had learned that Ford had “posted for the vacant desk director
position in RBD East.” Appellant R. vol. 3 at 661. Based on Ford’s application to this
position, Bossert told Stone that “[he] firmly believe[s] that she would attempt to
leverage that position into an opportunity to work against the company’s interest by
furthering her complaint.” Appellant R. vol. 3 at 661 (emphasis added).
Unsurprisingly, Ford was not offered this position.
Ford has presented sufficient evidence of pretext.11 The email demonstrates—
on its face—that Bossert didn’t want to promote Ford, because she would use that
opportunity to “further[] her complaint.” Appellant R. vol. 3 at 661. A reasonable
jury could view this evidence to find that Jackson’s true motivation for not promoting
Ford was retaliatory in nature. See Gosset v. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1177
(10th Cir. 2001) (“A plaintiff demonstrates pretext either by
showing that a discriminatory reason more likely motivated the defendant’s decision
or that the employer’s proffered explanation is unworthy of belief.” (emphasis
added)).
And this is not Ford’s only evidence supporting pretext. Bossert also allegedly
told Blanchette that Ford “would not become an external” because “she was causing
11
Ford characterizes this evidence as indirect evidence of retaliation. See
Opening Br. at 29–30 (“Because Ms. Ford did present evidence demonstrating a
genuine issue of material fact whether Jackson’s reasons for not promoting her . . . ,
the District Court failed to conduct a complete McDonnell Douglas analysis.”). We
need not decide whether Ford’s proffered evidence constitutes direct or indirect
evidence because, regardless of its characterization, we conclude that a reasonable
jury could find based on this evidence that Jackson retaliated against Ford by not
promoting her.
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far too much problems.” Appellant R. vol. 3 at 584. On top of that, Bossert also
laughed and replied, “Let her try” when discussing Ford’s candidacy for an open
external-wholesaler position. Appellant R. vol. 3 at 587. This evidence erodes
whatever explanation Jackson had for not promoting her, because the evidence
supports Ford’s assertion that she would never be promoted—no matter what she did.
When read alongside the email evidence, a jury could conclude that Jackson had no
intention of ever promoting Ford because of her previous complaints.
But Jackson argues that we should put no stock into Bossert’s comments
because he wasn’t involved in the hiring of external wholesalers. According to
Jackson, Bossert’s influence in the promotion process extended only to
recommending those to the shortlist—and Ford made that list multiple times. Said
another way, Jackson argues that “Ford succeeded through the stages of the process
with which evidence indicates Bossert was involved.” Response Br. at 21.
We disagree with Jackson. Even though Ford may have made the shortlist for
these positions, she has produced evidence that Bossert’s influence extended beyond
just recommending those who qualified for the shortlist. For example, Traci Reiter,
another Jackson employee, testified that when deciding who would be promoted, one
executive would ask, “Hey, you know, who does Jim Bossert suggest[?]” Appellant
R. vol. 2 at 395. And that executive would solicit Bossert’s advice about candidates
who were already on the shortlist. Id.
(“Q: So all of these people would have had to
have been on the short list at that time? A: Yes, I would assume so.”). As another
example, Ford also testified that Bossert had to approve any promotion. See
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Appellant R. vol. 2 at 340 (“[I]f the internal was coming from the desk, they have to
also have approval from that desk director or that national sales manager, which was
James Bossert.”). This assertion is supported by Blanchette’s testimony that Bossert
participated in roundtable meetings about who should be promoted to external
wholesalers. At minimum, Ford has raised a triable issue of fact about whether
Bossert had decision-making authority for promotions. To make it past summary
judgment, that is all that is required.
In short, a reasonable jury could view this evidence and find that Jackson’s
reasons for not promoting Ford were pretext for retaliation. Thus, we reverse the
dismissal of Ford’s retaliation claim based on her failure-to-promote theory.
B. Performance-Improvement Plan
Next, Ford argues that she was retaliated against when she was placed on a
PIP. In our circuit, “a PIP, standing alone, is not an adverse employment action.”
Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1224
(10th Cir. 2006). Still, a PIP “may be an adverse employment action . . . if it effects a significant change in the plaintiff’s employment status.”Id.
(emphasis in original).
The district court concluded that there was a triable issue of material fact
whether the PIP here constituted an adverse employment action because, at Jackson,
“employees on PIPs cannot be promoted.” Appellant R. vol. 4 at 927; see also
Appellant R. vol. 2 at 519 (“Q: And for the three months that Mr. Poole was under
this performance improvement plan in August of 2013, Exhibit 30, was he eligible to
seek promotions? . . . . A: Not while he was on the document.”). But the district court
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still determined that Ford hadn’t established a prima facie case of retaliation on this
theory because she had failed to establish a causal connection between her protected
activity and the imposition of the PIP.
We agree with the district court. First, Ford’s protected activity, like her
EEOC complaint and four-page letter to HR, post-dated the PIP. Compare Appellant
R. vol. 2 at 429 (stating that the date of the PIP was September 10, 2009) with
Appellant R. vol. 4 at 949 (stating that the date of her first EEOC complaint was on
December 7, 2009); Supp. R. at 144 (stating date of her four-page complaint to HR as
September 11, 2009). Because Ford’s protected activity occurred after Walker
imposed the PIP, she cannot maintain her retaliation claim on this basis.12 See
Kilcrease v. Domenico Transp. Co., 828 F.3d 1214, 1226
(10th Cir. 2016)
(explaining that there was no causal connection between an employer’s decision to
not hire a plaintiff and the assertion of the plaintiff’s ADA rights because the
employer had decided not to hire a plaintiff before learning of the plaintiff’s ADA
rights).
But Ford maintains that there is still a causal connection between other
protected activity—such as her complaints to her supervisors, like Lane, about her
treatment—because those occurred before the PIP. But this evidence cuts against her,
12
Nor can Ford rely on Bossert’s alleged instruction to Blanchette to fire her.
These comments had to have occurred after Blanchette became Ford’s supervisor,
which did not occur until November 2009—two months after the PIP. See Appellant
R. vol. 2 at 351 (Ford stating that upon completion of HR’s investigation into her
four-page complaint, which occurred in November 2009, see Appellant R. vol. 2 at
429, she was “now reporting to [Robert] Blanchette”).
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not for her. As Ford admits, Lane “stopped working for Jackson in December of
2008, some nine months before the PIP.” Reply Br. at 9 (emphasis added). A nine-
month difference between the protected activity and the alleged adverse employment
action is too long of a time, on its own, to establish any causal connection. See
Bekkem, 915 F.3d at 1271
(“[A] three-month gap between protected activity and an
adverse action is too long to support an inference of causation on its own.”). And
given the timing between Bossert instructing Blanchette to fire Ford and Ford’s
complaints to the EEOC and to HR, we can infer only that Bossert’s comments were
made in response to those complaints, and not Ford’s earlier complaints to Lane. See
Appellant R. vol. 3 at 580 (stating that “in late 2009 Mr. Bossert had instructed
[Blanchette] to terminate” Funchess and Ford).
As a result, we affirm the district court’s dismissal of Ford’s retaliation claim
based on the PIP.
C. Realignment of Territories
Finally, we consider the district court’s dismissal of Ford’s retaliation claim
based on the realignment of her territories. For the same reasons we explained in the
discrimination section—that Ford had failed to demonstrate that the realignment of
her territories even amounted to an adverse employment action—we conclude that
the district correctly dismissed this claim.
IV. Hostile Work Environment
Next, we turn to Ford’s claim for hostile work environment, which she alleges
was based on her race and sex.
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A. Aggregation of Racial and Sexual Hostility
Before reaching the merits of her claim, we address Ford’s argument that the
district court erred by treating her allegations of race- and sex-based hostility as
separate hostile-work-environment claims, rather than aggregating them into a single
claim.
We have not addressed this question head-on. But in Hicks v. Gates Rubber
Co., 833 F.2d 1406
(10th Cir. 1987), we considered whether “a trial court may aggregate evidence of racial hostility with evidence of sexual hostility.”Id. at 1416
(emphasis added). We held “that such aggregation is permissible.”Id.
(emphasis added). But we did not mandate that courts do so. Seeid.
Nor, post-Hicks, have we reversed when a court has treated these claims separately. See, e.g., Chavez v. New Mexico,397 F.3d 826
, 831–32 (10th Cir. 2005) (separating racially hostile work
environment claim from sex-based harassment).
In addition, we note that Ford raised these as separate claims in her complaint.
And she discussed them separately in her summary-judgment briefing. We can thus
hardly fault the district court for doing the same. In sum, the district court did not err
by treating Ford’s race- and sex-based claims as distinct claims.
B. Merits
We now turn to the merits. For this claim to survive summary judgment, Ford
must first show that Jackson discriminated against her because of her race and sex.
See Sanderson v. Wyo. Highway Patrol, 976 F.3d 1164, 1174
(10th Cir. 2020) (sex- based hostility); Hernandez v. Valley View Hosp. Ass’n,684 F.3d 950, 957
(10th Cir.
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2012) (race-based hostility). Second, she must demonstrate “that the discrimination
was sufficiently severe or pervasive such that it altered the terms or conditions of
[her] employment and created an abusive working environment.” Sanderson, 976 F.3d at 1174
(quoting Medina v. Income Support Div.,413 F.3d 1131, 1134
(10th
Cir. 2005)).
To prove severity or pervasiveness, a plaintiff must subjectively and
objectively perceive the harassment. Throupe v. Univ. of Denver, 988 F.3d 1243, 1252
(10th Cir. 2021). This means the plaintiff must: (1) subjectively perceive “the conduct to be severe or pervasive,” and (2) “show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult.”Id.
(quoting Sanderson,976 F.3d at 1176
). We analyze severity and pervasiveness by looking at the totality of the circumstances and “consider such factors as the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Morris v. City of Colo. Springs,666 F.3d 654, 664
(10th Cir. 2012). “‘[A] few isolated incidents’ of discriminatory conduct” and “run-of-the mill boorish, juvenile, or annoying behavior that is not uncommon in American workplaces” are insufficient to support a claim for hostile work environment. Throupe,988 F.3d at 1252
(quoting Morris,666 F.3d at 664
). With that in mind, whether conduct qualifies as severe or pervasive is
“particularly unsuited for summary judgment because it is quintessentially a question
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of fact.” Hernandez, 684 F.3d at 958
(quoting O’Shea v. Yellow Tech. Servs., Inc.,185 F.3d 1093, 1098
(10th Cir. 1999)).
a. Sex-Based Hostility
We start with whether Ford has provided sufficient evidence of a sex-based
hostile work environment. But before reaching the merits of this claim, we must first
determine whether the district court erred in failing to consider the vodka-bottle
incident from January 2008 and the football defacement from October 2010 as part of
Ford’s work environment. We conclude that the district court erred in refusing to
consider the former, but correctly rejected consideration of the latter.
We then consider whether the vodka-bottle incident, along with Ford’s other
evidence, supports a claim for a hostile work environment. As we explain below, a
reasonable jury could find that Jackson maintained a sex-based hostile work
environment.
i. Vodka-Bottle Incident
Recall that at a Jackson off-site work party in 2008, Ford alleges that one of
Jackson’s vice-presidents, John Poulsen, held a vodka bottle horizontally in his
pelvic region, thrusted at her, and told Ford to “get on [her] knees.” Appellant R. vol.
2 at 501. This so humiliated Ford that she left the party. Ford argues that this incident
was more evidence of the sex-based hostility that she endured at Jackson. Jackson, on
the other hand, argues that this conduct occurred outside the limitations period and
bears no relationship to the other type of conduct she complains of, so we need not
consider it as part of her claim.
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Generally, Title VII discrimination claims require a plaintiff “to file a claim
within 300 days of the alleged discriminatory conduct.” Duncan v. Manager, Dep’t of
Safety, City and Cnty. of Denver, 397 F.3d 1300, 1308
(10th Cir. 2005) (citing 42
U.S.C. § 2000e-5(e)(1)). But for claims of hostile work environment, “this
requirement has proven problematic” because these claims “often involve a series of
incidents that span a period longer than 300 days.” Id.
In addressing this problem, the Supreme Court has explained that “[i]t does not
matter . . . that some of the component acts of the hostile work environment fall
outside the statutory time period.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117
(2002). What matters is that there is “an act contributing to the claim [that] occurs within the filing period.”Id.
If there is, “the entire time period of the hostile environment may be considered by a court for the purposes of determining liability,”id.,
as long as “the acts about which an employee complains are part of the same actionable hostile work environment practice,”id. at 120
.
An event is part of the same hostile work environment when “the pre- and
post-limitations period incidents involve[d] the same type of employment actions,
occurred relatively frequently, and were perpetrated by the same managers.” Id.
(alteration in original) (citation omitted). But these factors aren’t exhaustive. Hansen v. SkyWest Airlines,844 F.3d 914, 923
(10th Cir. 2016). “Morgan ‘does not limit the relevant criteria or set our factors or prongs.’”Id.
(quoting McGullam v. Cedar Graphics, Inc.,609 F.3d 70, 77
(2d Cir. 2010)). We must remain flexible “in a
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context as fact-specific and sensitive as employment discrimination and as
amorphous as hostile work environment.” Id.
(quoting McGullam,609 F.3d at 77
).
Here, the vodka-bottle incident occurred in January 2008, and Ford filed her
first EEOC charge on December 7, 2009. Thus, the vodka-bottle incident, on its own,
falls outside the 300-day limitations period. But that doesn’t end our inquiry. We
may still consider the incident if it is sufficiently like Ford’s other sex-based
complaints, such that it may be considered part of the “the same actionable hostile
work environment practice.”13 Morgan, 536 U.S. at 120
. The district court found that
“there [was] no indication that the vodka-bottle incident . . . is related to or part of
any course of conduct connected with the other incidents that Ms. Ford cites.”
Appellant R. vol. 4 at 933–34.
We disagree. We have previously concluded that “because [certain] instances
of harassment [were] related by type, perpetrator, and location . . . the district court
was wrong not to consider them as part of the same actionable hostile work
environment practice.” Hansen, 844 F.3d at 924
. Ford complained that Jackson
fostered a work environment that condoned the type of behavior where its workers
could openly discuss “[g]irls gaining weight, [and the] size of their breasts,”
13
We note that Ford doesn’t specify the dates on which she experienced
sexually harassing comments. But she does allege that these comments occurred “on
a daily basis with impunity.” Appellant R. vol. 2 at 467. And Jackson doesn’t argue
that no sexually harassing comments were made within the 300-day limitations
period. Instead, Jackson argues only that we can’t consider the vodka-bottle incident
because “it is unrelated to any of the other incidents Ford raises as part of the alleged
hostile work environment.” Response Br. at 47.
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Appellant R. vol. 3 at 729; where its male employees would make comments about
“female genitalia resembling roast beef,” Appellant R. vol. 2 at 543; and where its
employees could accuse their female coworkers of “trying to have sex with . . .
advisors at different points,” Appellant R. vol. 3 at 707. Even if Poulsen was not the
same manager and this incident occurred only once, asking someone to “get on her
knees” and thrusting a bottle at her is the same type of sex-based hostility that Ford
has repeatedly complained of. And given that we must remain flexible in making
such assessments, at the very least, Ford has “demonstrated a triable issue as to
whether [the vodka-bottle incident] . . . constituted ‘the same actionable hostile work
environment practice.’” Hansen, 944 F.3d at 924.
Thus, the district court erred by disregarding this incident from its analysis.
ii. Defaced-Football Incident
We turn now to the defaced-football incident. Recall, after Ford had given
Jackson her two-week notice, two of her coworkers threw a football at her. But the
football had been defaced. It originally read “Black Rock,” but the “R” was changed
to a “C.” Appellant R. vol. 2 at 297. Ford reported the incident to Stone and refused
to complete her last two weeks at the company.
The district court found that this evidence wasn’t relevant because it “did not
alter the terms or conditions of her employment such that it could create or contribute
to a triable issue of Title VII liability,” given that Ford “had already tendered her
resignation.” Appellant R. vol. 4 at 937.
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We agree that the district court need not consider this incident—but for a
different reason. We focus on the fact that an employer is liable for a claim of hostile
work environment only “if it knew, or should have known, about the hostile work
environment and failed to respond in an appropriate manner.” Wright-Simmons v.
City of Okla. City, 155 F.3d 1264, 1270
(10th Cir. 1998) (emphasis added). After
Jackson told Stone about the defaced-football incident, Stone flew to Denver and
fired the two workers involved. Jackson then held a meeting with about 400 people in
the Denver office to reinforce that such behavior would not be tolerated at the
company. And on top of all that, Jackson’s president also wrote a letter apologizing
to Ford. Ford doesn’t explain what more Jackson should have done.
Thus, because Jackson “respond[ed] in an appropriate manner,” for this
incident, we have no need to consider this incident as part of hostile-work-
environment claim. Id.
iii. Ford’s Other Evidence
We now turn to whether Ford’s other evidence supports her claim. It does. To
start, Ford identified evidence that she was repeatedly asked sexually explicit
questions. Appellant R. vol. 4 at 950 (“Crosby has also asked me, ‘How big are your
boobs?’”). She also alleged that Walker “allowed offensive racist and sexist remarks
on the sales desk to be made on a daily basis with impunity.” Appellant R. vol. 2 at
467. Ford cites the testimony of several female Jackson employees who agreed that
the “constant . . . sexual banter” at Jackson was “degrading.” Appellant R. vol. 3 at
718. They testified that male employees regularly commented about “how tight their
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clothes were . . . girls gaining weight, [and the] size of their breasts.” Appellant R.
vol. 3 at 729. Indeed, sexually explicit conversations were apparently so frequent at
Jackson that one employee said, “it would be easier to list [the employees] who
didn’t participate than the ones who did.” Appellant R. vol. 3 at 707.
On these facts, a reasonable jury could find that Jackson maintained a work
environment that was “sufficiently severe or pervasive such that it altered the terms
or conditions of her employment and created an abusive working environment.”
Sanderson, 976 F.3d at 1174
(quoting Medina,413 F.3d at 1134
). In fact, the district
court agreed. It found that Ford had raised a genuine dispute of material fact about
“whether the conduct was sufficiently pervasive to create an actionably hostile work
environment.” Appellant R. vol. 4 at 934.
Yet the district court still dismissed Ford’s claim because it did not “find a
genuine dispute as to the severity of the sexual comments that [] Ford experience[d].”
Id.
The court explained that this behavior fell “short of the severity necessary to meet
the hostile work environment test of ‘intimidation, ridicule, and insult’ sufficient to
alter the conditions of an employee’s employment.” Appellant R. vol. 4 at 935.
On this point, the district court erred. “Proof of either severity or
pervasiveness can serve as an independent ground to sustain a hostile work
environment claim.” Throupe, 988 F.3d at 1252
(emphasis added). So once the court
determined that there was a genuine dispute about the pervasiveness of the hostile
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work environment, it didn’t need to also find severity for Ford’s claim to survive
summary judgment.14
iv. Jackson’s Counterarguments
Jackson argues that this claim should still be dismissed for three reasons. First,
it contends that there is no evidence that these comments affected the conditions of
Ford’s employment given that “the record reflects that [she] progressed through the
ranks of Jackson.” Response Br. at 42. Second, Jackson insists that Ford’s reliance on
the testimony of other women cannot support her claim. Finally, Jackson argues that
Ford never subjectively perceived this harassment.
1. Effect on Ford’s Employment
Jackson contends that because Ford continued to progress through its ranks,
the conditions of her employment weren’t affected for the worse. But “the law does
not require a plaintiff to show that the discriminatorily abusive work environment
seriously affected her psychological well-being, or that it tangibly impaired her work
performance[.]” Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341
(10th Cir. 1998) (emphasis added) (internal citation omitted). “The criterion is not what a reasonable woman employee is capable of enduring, but whether the offensive acts alter the conditions of employment.”Id.
(original emphasis removed) (quoting Dey v. Colt
14
The court also ruled that Ford’s claim failed “because there [was] no dispute
that [these] comments did not interfere with Ms. Ford’s work performance,” given
that she became a business-development consultant, completed boot camp, and made
the short list for external wholesaler positions. See Appellant R. vol. 4 at 935. We
address that argument below.
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Constr. & Dev. Co., 28 F.3d 1446, 1455
(7th Cir. 1994)); see also Terry v. Ashcroft,336 F.3d 128, 148
(2d Cir. 2003) (“[T]he test is whether ‘the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.’” (emphasis in original) (citation omitted)). At bottom, a victim’s ability to succeed at her job in the face of harassment should not then mean that she has forfeited her right to bring a claim for hostile work environment. See Gabrielle M. v. Ill. Sch. Dist. 163,315 F.3d 817
, 828 (7th Cir.
2003) (Rovner, J., concurring) (“[W]e have repeatedly rejected the notion that a
victim’s ability to keep doing her job in the face of harassment will defeat her
contention that the workplace was hostile.”).
Thus, we need only ask whether a reasonable jury could find that Ford’s
condition of employment was altered for the worse because of these sex-based
harassment. As we’ve already explained, the answer is yes. So the fact that Ford
continued to progress at Jackson is no reason for us to dismiss her claim for hostile
work environment.
2. Testimony of Other Women
Next, Jackson insists that Ford’s evidence is insufficient to support her claim
because she “relies heavily on testimony from other Jackson employees to support
her claim.” Response Br. at 42. This fact, Jackson contends, is insufficient to support
her claim because “generalized testimony about sexual banter, not anchored in time
or place, or attributed to any particular speaker cannot support a hostile work
environment.” Response Br. at 44.
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We disagree with Jackson’s characterization of the evidence. First, “[a] hostile
work environment claimant need not establish precise dates for every insult.” Nettle
v. Cent. Okla. Am. Indian Health Council, Inc., 334 F. App’x. 914, 921 (10th Cir.
2009). “After all, the point of such claims is that the discrimination was ongoing and
pervasive, that is, all the time, and not at isolated points in time.” Id. (emphasis in
original).
Second, in making this argument, Jackson ignores Ford’s other evidence. Ford
has supplied evidence that she was subjected to sexual harassment as seen by her
complaints to the EEOC, to her supervisors, and to HR. The testimony of these other
women was just more evidence to support her claim. And we’ve held that evidence
directed at others—who are not the plaintiff—is relevant in this analysis. See Hicks,
833 F.2d at 1415
(“Evidence of a general work atmosphere therefore—as well as evidence of specific hostility directed toward the plaintiff—is an important factor in evaluating the claim.”); see also Hernandez,684 F.3d at 959
(“[W]e have held that
derogatory comments need not be directed at or intended to be received by the victim
to be evidence of a hostile work environment.”).
In sum, Ford did not rely solely on the testimony of women to support her
hostile-work environment claim. Ford used this evidence to supplement her other
evidence. Thus, Ford has presented sufficient evidence of a sex-based hostile work
environment.
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3. Subjective Perception
Next, we consider Jackson’s argument that Ford never subjectively perceived
her harassment as sufficiently severe or pervasive. Jackson argues that because
Ford’s four-page complaint to HR only has a “brief aside” about the hostile work
environment—“[internal wholesalers] are allowed to have open racial and sexual
discussions without reprimand”—as compared to her “several pages of detailed
complaints” of other conduct at Jackson, Ford did not subjectively perceive her work
environment to be sufficiently severe or pervasive to support her claim. Response Br.
at 45. Jackson also contends that “Ford’s silence on any alleged comments” suggests
that she did not subjectively perceive her work environment to be hostile. Response
Br. at 46.
Once again, we disagree with Jackson. First, Jackson cites no case to support
its argument that we should dismiss a claim for hostile work environment based on
the amount of detail an employee fails to include in an actual complaint she filed
with the company. That Ford included the allegation at all should be enough. Second,
Ford was not silent about her complaints. She told Blanchette that her coworkers
would talk about her breasts and throw items at her. And in her EEOC complaints,
she details the type of racial and sexual harassment she experienced at Jackson. This
includes racist jokes and her being asked sexually explicit questions. See Appellant
R. vol. 4 at 950 (accusing Jackson employees of having “openly racist and sexual
discussions”).
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Thus, Ford has presented sufficient evidence that she subjectively perceived
her work environment to survive summary judgment.
b. Race-Based Hostility
Next, we turn to the race-based allegations of hostile work environment at
Jackson. The district court rejected this claim for two main reasons. First, it
concluded that though Ford complains that Bossert and other managers called her
derogatory names—such as “bitches,” “divas,” “resident streets walkers,” “Black
bitches from Atlanta,” and “Black Panthers”—Ford had “not alleged that she heard
these comments.” Appellant R. vol. 4 at 936 (internal citation omitted). This meant,
according to the court, that Ford had failed to “establish a genuine dispute that such
conduct unreasonably interfered with Ms. Ford’s work performance, or that the
environment at Jackson was both objectively and subjectively hostile.” Id.
Second,
the court determined that a white coworker’s use of the n-word in front of Ford while
telling a story was not done with racial animus, such that its use alone created a
hostile work environment. As a result, when viewing its use “in the context of other,
overtly racially discriminatory conduct,” the court concluded that Ford had
experienced “isolated incidents of racial enmity or sporadic racial slurs” that were
“insufficient to establish a triable issue of fact of a hostile work environment.”
Appellant R. vol. 4 at 937.
We start with the district court’s first reason for dismissal—that Ford had not
heard these derogatory names. We conclude that the court erred in arriving at this
conclusion. The court is correct that a plaintiff “may only rely on evidence relating to
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harassment of which she was aware during the time she was allegedly subject to a
hostile work environment.” Creamer v. Laidlaw Transit, Inc., 86 F.3d 167, 171
(10th
Cir. 1996) (emphasis added) (citation omitted). And the court is also correct that Ford
admits that she didn’t hear some of Bossert’s comments until after she left Jackson.
Appellant R. vol. 4 at 975 (“After I left, I have since been made aware that Ms.
Funchess and I were also referred to as ‘pieces of shit,’ and ‘Black Panthers,’ and
Jackson’s ‘resident street walkers.’” (emphasis added)).
But that doesn’t mean that Ford was unaware of all the derogatory names she
was called. Indeed, she has stated that “While [she] worked for Jackson, [she] was
called ‘black bitch’ several times, and [she] knew that [] Ms. Funchess and [her]
were referred to as ‘black bitches from Atlanta’ and that Bossert referred to us as
Jackson’s ‘Black Panther Party.’” Appellant R. vol. 4 at 975 (emphasis added). Even
if Ford did not personally hear these comments, she testified that she heard about
these comments while she worked at Jackson. In fact, that is how Ford said that she
learned about the “Black bitches from Atlanta” comment. See Appellant R. vol. 2 at
374 (“A: I know [Bossert] made one of these statements calling us Black bitches
from Atlanta, he made that in a . . . supervisor’s meeting where [Funchess] was not
present, but Al Gannaway was. Q: Did Al tell you about what Mr. Bossert said? A:
Yes, he did . . . . Q: It’s when you were working in Denver? A: Yes.”). In sum, the
district court incorrectly found that Ford had not heard all these comments and thus
erred in not considering this evidence as part of Ford’s claim.
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With that in mind, we turn to the district court’s second reason for dismissal—
that Ford had failed to raise a genuine issue of fact that she experienced a severe or
pervasive hostile work environment based on race. When viewing the totality of
Ford’s evidence, including the names she was called and the use of the n-word, we
conclude that a reasonable jury could find that Ford experienced a severe or
pervasive hostile work environment on account of her race.
The n-word is a “powerfully charged racial term.” Lounds v. Lincare, Inc., 812 F.3d 1208, 1230
(10th Cir. 2015). Its use—even if done with benign intent and undirected at anyone specific—can contribute to a hostile work environment. Seeid.
(“The important question is whether the repeated utterance of this term had the effect of contributing to the creation of a racially hostile work environment.” (emphasis in original)); see also Savage v. Maryland,896 F.3d 260, 277
(4th Cir. 2018) (“[A]n employer’s repeated and continuous use of that slur, among others, to insult African– American employees and customers, even when not directed specifically at the complaining employee, is ‘sufficiently severe or pervasive (or both)’ to create an unlawful hostile work environment.” (quoting Spriggs v. Diamond Auto Glass,242 F.3d 179, 185
(4th Cir. 2001)).
And here, Ford supplied other examples of racist comments beyond just the
use of the n-word. For example, she said that after Obama was elected president, her
coworkers made jokes about how “Watermelon is going to be on sale,” and that
“Chevy Impalas will be discounted.” Appellant R. vol. 4 at 950. Ford alleges that
these “offensive racist and sexist remarks . . . [were] made on a daily basis with
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impunity.” Appellant R. vol. 2 at 467. Indeed, Blanchette even confirmed that Ford
had told him that she had gone to “to one of the janitorial broom closets and cried it
out” because someone “had made a racially inappropriate comment to her.”
Appellant R. vol. 3 at 589. Ford also said that she was called “black bitch” several
times while working at Jackson. This includes Ford learning from a colleague that
Bossert had called her a “Black bitch[] from Atlanta” in a supervisors’ meeting while
she was still at Jackson.
In Freeman v. Dal-Tile Corp., 750 F.3d 413
(4th Cir. 2014), the Fourth Circuit
stated:
the use of the word “n* * * *r,” coupled with the on-going offensive racial
talk, use of the term “black b* * * *” on more than one occasion (once
directed at a black employee), and sexual talk regarding black women, is
sufficient evidence for a reasonable jury to find the race-based
harassment was objectively severe or pervasive.
Id. at 422
. We agree. And many of these same circumstances appear here. Keeping in mind that “the severity and pervasiveness evaluation is particularly unsuited for summary judgment,” we therefore conclude that a reasonable jury could find that Ford was subject to a severe or pervasive race-based hostile work environment. Hernandez,684 F.3d at 958
(quoting O’Shea,185 F.3d at 1098
).
c. Jackson’s Response
Before moving on, we consider whether Jackson’s response to Ford’s
complaint absolves it of liability. True, an employer may be absolved of liability “if
it undertakes remedial and preventative action reasonably calculated to end the
harassment.” Duncan, 397 F.3d at 1310
(internal quotations and citation omitted).
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But, generally, “the promptness and adequacy of the employer’s response to a
complaint of harassment are fact questions for the jury to resolve.” Howard v. Burns
Bros., Inc., 149 F.3d 835
, 841 (8th Cir. 1998).
Here, Jackson argues that it always “promptly and effectively addressed issues
that Ford brought to its attention.” Response Br. at 53. To support its argument,
Jackson points out that it immediately fired the employees involved in the defaced-
football incident, and that Stone investigated Ford’s allegations of hostile work
environment, permitting her to call him about any complaints.
But in crafting this argument, Jackson ignores Ford’s repeated complaints to
her superiors about the treatment she was receiving at the company. For example, as
stated above, Ford complained to Blanchette and Lane about her treatment. Appellant
R. vol. 2 at 468 (Ford stating that she complained to Lane about Walker “ignoring the
sexually and racially offensive conduct”); Appellant R. vol. 3 at 589 (Blanchette
confirming that Ford had complained to him about racially inappropriate comments
made to her). And she articulated these concerns to Stone. See Supp R. at 144–47.
Despite all this, she alleges that she continued to suffer race- and sex-based
harassment, repeatedly raising these allegations in her EEOC complaints. See
Appellant R. vol. 4 at 950 (Ford alleging that Walker allowed workers to have
“openly racist and sexual discussions”); Appellant R. vol. 3 at 741 (Ford alleging that
she had “observed sexually explicit and discriminatory e-mails being exchanged”).
As another example, Ford first complained about one of the employees
involved in the defaced-football incident, Crosby, long before he was fired for that
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incident—she specifically mentioned him in her first EEOC complaint back in
December 2009. See Appellant R. vol. 4 at 950 (“Mr. Crosby has also asked me,
‘How big are your boobs?’ and ‘What size bra do you wear?’”). And she reiterated
that he continued to make sexually explicit comments to her in “July or August
2010.” Appellant R. vol. 3 at 741 (“Crosby . . . told me . . . that he likes a ‘little milk
or cream between my chocolate chip cookies,’ referring to my breasts.”). On these
facts, we believe it best for a jury to decide whether Jackson’s response was
sufficient to absolve it of liability.
In sum, Ford has presented sufficient evidence that she suffered a sex- and
race-based hostile work environment. We thus reverse the district court’s dismissal of
these claims.
V. Constructive Discharge
Last, we come to Ford’s final claim: constructive discharge. Constructive
discharge “occurs when a reasonable person in the employee’s position would view
her working conditions as intolerable and would feel that she had no other choice but
to quit.” Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1270
(10th Cir. 2004). A plaintiff’s burden on this claim is “substantial.” PVNF,487 F.3d at 805
. It “entails something more than conduct that amounts to actionable harassment.” Hernandez,684 F.3d at 961
(brackets omitted) (quoting Pa. State Police v. Suders,542 U.S. 129, 147
(2004)). Instead, it asks “whether the employee had any other reasonable choice but to resign in light of [the employer’s] actions.” Tran,355 F.3d at 1270
.
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The district court dismissed this claim because it found that Ford “had failed to
raise a genuine issue of fact that she was subject to a hostile work environment.” R.
vol. 4 at 938. So, according to the court, Ford could not “sustain the more onerous
burden” of proving a claim for constructive discharge. Id.
In other words, the district
court’s dismissal of Ford’s constructive-discharge claim was premised solely on its
finding that Ford had not proven her claim for hostile work environment.
But because we reverse the dismissal of Ford’s hostile-work-environment
claim, we also reverse the dismissal of Ford’s constructive-discharge claim. This will
allow the district court to consider, in the first instance, whether Ford has submitted
sufficient evidence of her claim of constructive discharge.
VI. The District Court’s Application of Its Procedural Rules
Ford also argues that the district court improperly applied its own procedural
rules, which resulted in the court erroneously granting summary judgment for
Jackson. We review how a district court applied its local rules for abuse of discretion.
Roth v. Green, 466 F.3d 1179, 1190
(10th Cir. 2006).
Ford argues that Jackson failed to adhere to the district court’s practice
standards. At issue is the requirement that a litigant, on a motion for summary
judgment, respond to the other party’s disputed facts by providing a brief explanation
for its position and citing the record.15
15
Ford also points out that Jackson submitted several single-spaced filings,
which would violate the district court’s local rules, and that Jackson’s motion for
summary judgment was unsigned.
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But the district court noted Jackson’s flouting of its procedures in its order.
See Appellant R. vol. 4 at 905 n.2. That the court still decided to consider Jackson’s
motion was not an abuse of discretion given “the wide latitude district courts enjoy in
interpreting and administering their own rules.” Bylin v. Billings, 568 F.3d 1224
,
1230 n.7 (10th Cir. 2009). And though Ford argues that she was prejudiced because
Jackson’s noncompliance prevented the court from understanding which facts were
disputed, see Opening Br. at 50, the court did not indicate that it faced such a
problem.
In sum, the district court did not abuse its discretion in how it applied its local
and procedural rules.
CONCLUSION
For these reasons, we affirm the dismissal of Ford’s discrimination claim. But
we reverse the dismissal of her retaliation claim (only on her failure-to-promote
theory) and her hostile-work-environment claim. We also reverse and remand her
constructive-discharge claim.
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