McBride v. Peak Wellness Center, Inc. ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
August 6, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
LISA G. McBRIDE,
Plaintiff-Appellant,
v. No. 11-8037
PEAK WELLNESS CENTER, INC.,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. NO. 2:10-CV-00146-NDF)
Bruce S. Asay, Associated Legal Group, LLC, Cheyenne, Wyoming, for
Appellant.
Patrick E. Hacker (Gregory P. Hacker with him on the brief), Hacker, Hacker &
Kendall, P.C., Cheyenne, Wyoming, for Appellee.
Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.
TYMKOVICH, Circuit Judge.
Lisa McBride is an accountant who worked as Peak Wellness Center’s
business manager for about nine years. Peak terminated her in 2009, citing job
performance and morale issues. McBride, however, claims she was terminated in
retaliation for bringing various accounting improprieties to the attention of Peak’s
Board of Directors.
McBride brought several federal and state-law claims against Peak, among
them (1) whistleblower retaliation under the federal False Claims Act (FCA); (2)
violations of the federal Fair Labor Standards Act (FLSA); (3) breach of
employment contract; (4) breach of implied covenant of good faith and fair
dealing; (5) defamation; and (6) a federal sex discrimination claim under Title VII
of the Civil Rights Act. After discovery, Peak moved for summary judgment on
all claims, and the district court granted the motion. McBride appeals the grant of
summary judgment, arguing that significant issues of material fact remain
unresolved and that her claims should proceed to trial. She also appeals the
district court’s denial of an evidentiary motion.
Finding no error in the district court’s decision, we AFFIRM its grant of
summary judgment in favor of Peak.
I. Background
McBride, a certified public accountant, served for nine years as the
business manager of Peak, a non-profit drug rehabilitation center in Laramie
County, Wyoming. Peak received much of its funding from federal and state
grants, and one of McBride’s job responsibilities was to ensure that Peak’s use of
grant money complied with applicable accounting principles.
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McBride was also responsible for coordinating periodic audits performed
by external private entities. McBride claims she notified Peak regarding possible
improprieties in the use of grant money, but that her efforts to address these
concerns were met with resistance and retaliation.
The record indicates that McBride did not get along with some of her
coworkers. Emails among Peak employees reveal that some viewed McBride as
meddlesome; for example, one coworker became angry when McBride contacted
one of Peak’s vendors regarding deficiencies in invoices the vendor had submitted
to the coworker. Other emails included personal insults directed at McBride
behind her back.
McBride also experienced friction in her relationship with her supervisor,
Dr. Birney, who was Peak’s executive director. According to Birney, McBride
failed to bring her concerns regarding grant money accounting to him. Instead,
McBride went over his head and raised her concerns directly in front of the Board
of Directors. Birney was also concerned about McBride’s job performance and
her impact on employee morale.
In the years leading up to her termination, McBride received several
negative performance reviews. These reviews included suggestions for
improvement, but subsequent reviews did not reflect any progress. Peak
ultimately terminated McBride in January 2009.
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About two months after she was terminated, McBride requested a Board of
Directors review of her termination. Her request also included allegations of
fraud committed by other Peak employees, including Birney. The Board
commenced an internal investigation, but found no evidence of fraud. After
concluding its investigation, the Board decided not to re-hire McBride.
McBride sued Peak, bringing the aforementioned claims under federal and
state law. The district court granted summary judgment in favor of Peak on all
claims.
II. Discussion
A. Standard of Review
“We review the district court’s summary judgment decision de novo,
applying the same standard as the district court.” Brammer-Hoelter v. Twin Peaks
Charter Acad., 602 F.3d 1175, 1184 (10th Cir. 2010). “In applying this standard,
we examine the factual record and draw reasonable inferences therefrom in the
light most favorable to the nonmoving party,” that is, McBride. Id. (quoting
Clinger v. N.M. Highlands Univ. Bd. of Regents, 215 F.3d 1162, 1165 (10th Cir.
2000)).
In addition to the grant of summary judgment, McBride appeals the district
court’s denial of expanded discovery. “We review the district court’s discovery
order for abuse of discretion. A district court abuses its discretion where it
commits a legal error or relies on clearly erroneous factual findings, or where
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there is no rational basis in the evidence for its ruling.” Trentadue v. FBI, 572
F.3d 794, 806 (10th Cir. 2009) (citations and quotation marks omitted). The
moving party—McBride—bears the burden of showing the district court abused
its discretion.
B. McBride’s Claims
McBride challenges the district court’s dismissal of six distinct causes of
action.
1. False Claims Act Whistleblower Retaliation
McBride first claims Peak terminated her because Peak believed McBride
was considering bringing an FCA qui tam suit against Peak. McBride argues this
constituted illegal retaliation under the whistleblower provisions of the FCA.
The FCA imposes liability on any person who “knowingly presents, or
causes to be presented, to an officer or employee of the United States Government
. . . a false or fraudulent claim for payment or approval,” 31 U.S.C. § 3729(a)(1),
or “knowingly makes, uses, or causes to be made or used, a false record or
statement to get a false or fraudulent claim paid or approved by the Government,”
§ 3729(a)(2). The FCA authorizes individuals to bring qui tam suits on behalf of
the government and keep a percentage of any monies recovered.
Since employees will often be in the best position to report frauds
perpetrated by their employers, the FCA includes “whistleblower” provisions
protecting employees who do so from retaliation. Whistleblowers are entitled to
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reinstatement, double back pay, and litigation costs and attorneys’ fees.
§ 3730(h)(2). An employee need not actually file a qui tam action to qualify for
whistleblower protection, but “the activity prompting plaintiff’s discharge must
have been taken ‘in furtherance of’ an FCA enforcement action.” United States
ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1522 (10th Cir.
1996).
In addition, a plaintiff claiming retaliatory discharge under the FCA “has
the burden of pleading facts which would demonstrate that defendants had been
put on notice that plaintiff was either taking action in furtherance of a private qui
tam action or assisting in an FCA action brought by the government.” Id. Notice
may be provided in a number of ways: for example, by informing the employer of
“illegal activities” that would constitute fraud on the United States, United States
ex rel. Marlar v. BWXT Y-12, LLC, 525 F.3d 439 (6th Cir. 2008); by warning the
employer of regulatory noncompliance and false reporting of information to a
government agency, Wilkins v. St. Louis Hous. Auth., 314 F.3d 927 (8th Cir.
2002); or by explicitly informing the employer of an FCA violation, Eberhardt v.
Integrated Design & Constr. Inc., 167 F.3d 861, 867 (4th Cir. 1999). But merely
informing the employer of regulatory violations, without more, does not provide
sufficient notice, because doing so gives the employer “no suggestion that [the
plaintiff is] going to report such noncompliance to government officials” or bring
“her own qui tam action.” Ramseyer, 90 F.3d at 1523. Whistleblowers “must
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make clear their intentions of bringing or assisting in an FCA action in order to
overcome the presumption that they are merely acting in accordance with their
employment obligations.” Id. at 1523 n.7.
The record includes only one piece of evidence in support of McBride’s
assertion that Peak believed she was considering bringing an FCA action: an
email to Birney from Valerie Seigel, Peak’s information technology director.
Seigel told Birney that, based on conversations she had with other employees, “it
appears [McBride] is preparing a presentation for the auditors on how terrible
[Peak] is, not just the computer system but our administration in general,” and
“she was checking our Policies to see where you are out of compliance.” Supp.
App. at 124.
Seigel’s email to Birney was insufficient to put Peak on notice that
McBride might pursue a qui tam action. First, statements about “how terrible
[Peak] is” and lack of compliance with Peak’s internal policies does not amount
to an accusation of illegal, let alone fraudulent, conduct. Second, communicating
with auditors was part of McBride’s job; thus, her doing so would not indicate
that she was planning to report illegal activities or initiate a qui tam action.
Third, Peak’s auditor was a private entity, not a government entity, which further
undercuts the inference that Peak could have believed McBride was going to
report Peak’s alleged improprieties to the government.
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Without a clearer indication that McBride was planning to report Peak to
the government or file a qui tam suit, McBride’s retaliation claim cannot survive
summary judgment. See Ramseyer, 90 F.3d at 1522.
2. Fair Labor Standards Act Claim
McBride next claims Peak violated the FLSA by deducting time from her
accrued leave on days when she did not work a full 8-hour day. She argues the
FLSA forbids employers from deducting such time from salaried employees, as
McBride was. She seeks to recover the value of the accrued leave wrongfully
deducted.
The FLSA refers to salaried employees like McBride as “exempt”
employees. Since exempt employees are not paid by the hour, the FLSA’s
implementing regulations prohibit employers from docking their pay for working
less than a full eight-hour day. Spradling v. City of Tulsa, 95 F.3d 1492 (10th
Cir. 1996); see 29 C.F.R. § 541.602 (formerly codified at 29 C.F.R. § 541.118).
This rule, however, does not extend to non-monetary compensation such as
vacation time or sick leave. As the Department of Labor has explained in an
opinion letter:
In no event can any deductions from an exempt employee’s salary be
made for full or partial day absences occasioned by lack of
work . . . . Employers can, however, make deductions for absences
from an exempt employee’s leave bank in hourly increments, so long
as the employee’s salary is not reduced. If exempt employees
receive their full predetermined salary, deductions from a leave bank,
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whether in full day increments or not, do not affect their exempt
status.
Opinion Letter, FLSA2009-18, at 2 (Dep’t of Labor Jan. 16, 2009), available at
http://www.dol.gov/WHD/opinion/flsa.htm. “Given their provenance and legal
effect, [DOL] opinion letters are entitled to great weight when they interpret the
DOL’s own (ambiguous) regulations.” In re Wal-Mart Stores, Inc., Fair Labor
Standards Act Litig., MDL 1139 v. Wal-Mart Stores, Inc., 395 F.3d 1177, 1184
(10th Cir. 2005).
McBride alleges that, on several occasions, Peak subtracted time from her
accrued leave because she left work early or arrived late. But McBride does not
claim Peak made any deductions to her salary. Thus, even taking McBride’s
allegations as true, Peak did not violate the FLSA’s prohibition on pay deductions
for exempt employees.
McBride cites to two cases in support of her claim, but both are
distinguishable. In Spradling v. City of Tulsa, 95 F.3d 1492 (10th Cir. 1996), we
examined an employer’s policy that first deducted exempt employees’ accrued
leave for missed time and then, if there was no leave remaining, deducted
employees’ salary. See id. at 1501. Although we found this policy violated the
FLSA, we explicitly based this finding on the policy’s potential to deduct
employees’ salaries. See id. (“[W]e conclude there was an express policy that
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created the possibility of salary reductions for absences of less than one day.”)
(emphasis added) (internal quotation marks omitted).
Similarly, in Abshire v. Cnty. of Kern, 908 F.2d 483 (9th Cir. 1990), the
Ninth Circuit examined a policy in which the employer penalized employees for
working less than eight hours, first by deducting their sick leave, then their
salary. See id. at 486. It found the policy violated the FLSA because “the
employee’s pay [was] at all times subject to deductions for tardiness or other
occurrences,” even if no pay deductions had in fact occurred. Id. at 487(quotation marks omitted).
The continuing validity of Spradling and Abshire is doubtful in light of
revised Department of Labor regulations requiring a plaintiff to show “[a]n actual
practice of making improper deductions,” rather than the theoretical possibility of
such deductions. 29 C.F.R. § 541.603(a); see Baden-Winterwood v. Life Time
Fitness, Inc., 566 F.3d 618, 627–28 (6th Cir. 2009) (discussing the evolution of
these regulations). But even if Spradling and Abshire were still good law, the
present case is distinguishable because Peak’s policy did not allow the deduction
of McBride’s salary under any circumstances. If all of McBride’s accrued leave
had been deducted, no further penalty would have been imposed. Thus, this
policy did not violate the FLSA, and summary judgment was appropriate.
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3. Breach of Contract
McBride next claims that Peak breached McBride’s employment contract
by terminating her without following the dismissal procedures included in the
contract. 1 The district court found this claim was barred because McBride failed
to exhaust the dismissal review procedures specified in the contract.
“In Wyoming, employment relationships are presumed to be at-will.”
Boone v. Frontier Ref., Inc., 987 P.2d 681, 685 (Wyo. 1999). 2 Employees and
employers may depart from the presumption by entering an express or implied
contract, which may include an employee handbook. See id. Here, the parties
agree Peak’s employee handbook governed the terms of their employment
relationship.
Under Wyoming law, a terminated employee subject to an employment
contract must attempt to exhaust any mandatory grievance procedures provided by
1
In her briefing, McBride presents this issue in somewhat narrower terms:
whether the district court erred in finding that McBride failed to exhaust Peak’s
dismissal review policies. McBride also offered some contract-related arguments
under her tort claim for breach of the implied covenant of good faith and fair
dealing. We find it analytically cleaner to address McBride’s contract claim as a
discrete whole.
2
Wyoming recognizes a “limited exception to the at-will employment
doctrine” for a termination that violates public policy. McLean v. Hyland Enters.,
Inc., 34 P.3d 1262, 1268 (Wyo. 2001). McBride, however, does not argue on
appeal that she was terminated in violation of public policy, and even if we were
to construe her claims as such, she has not identified “a strong and well-
established public policy,” id., nor the absence of “any other remedy available,”
id. at 1269, as required by Wyoming law.
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the contract itself before bringing a breach-of-contract claim against the
employer. See Bryant v. Pac. Power & Light, 701 P.2d 1165, 1167 (Wyo. 1985). 3
Failure to do so normally bars the employee’s claim. See id. While this rule may
appear somewhat rigid, it is important to remember that Wyoming employers are
under no obligation to provide any termination remedy at all. See Hatfield v. Bd.
of Cnty. Comm’rs for Converse Cnty., 52 F.3d 858, 864 (10th Cir. 1995)
(upholding a provision in an employee handbook disclaiming the creation of an
implied contract and reaffirming employee’s at-will status).
Notwithstanding the employee’s failure to adhere to the contractual
grievance procedures, the claim may nonetheless survive if the employer waives
its right to enforce the procedures. Waiver has three elements under Wyoming
law: (1) an existing right, (2) knowledge of that right, and (3) an unequivocal
manifestation of intent to relinquish that right. Jackson State Bank v. Homar, 837
P.2d 1081, 1086 (Wyo. 1992).
McBride and Peak agree that an employment contract embodied by Peak’s
employee handbook governed the employment relationship between them. The
section of the contract dealing with termination stated:
The employee may within one (1) week (7 calendar days) request that
the dismissal be reviewed. . . . The Board of Directors, upon receipt
3
While Bryant involved a collective-bargaining contract, the Wyoming
Supreme Court has since applied it in the employee-handbook context, using
ordinary contract principles. See Metz v. Laramie Cnty. Sch. Dist. No. 1, 173
P.3d 334, 346 (Wyo. 2007) (discussed further below).
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of a request for a review of a dismissal decision, may appoint such
person or persons as they in their discretion deem appropriate to hear
the employee’s objection to the proposed action. . . . The review
provided . . . shall be the exclusive and mandatory procedure for
challenge of a dismissal and resolution of any allegations of
unfairness, impropriety, or violation of Peak rules or procedures.
Failure to timely request a review . . . shall waive any right of the
employee to contest the dismissal, or allege any violation of any
rules or procedures of Peak. In cases where the review is . . . not
timely sought . . . the dismissal shall be deemed valid and binding on
the employee.
Supp. App. at 101–02 (emphasis added).
McBride contested her dismissal in a letter to Peak’s Board two months
after she was terminated, and asked to be reinstated. The letter included
allegations of fraud by Peak employees. The Board launched an investigation
into these allegations. After concluding no fraud had occurred, the Board decided
not to re-hire McBride.
McBride’s employment contract required her to request a review of her
dismissal within seven days. But McBride did not request a review until two
months after she was terminated. Thus, her contract claim is barred. See Bryant,
701 P.2d at 1167.
After oral argument, McBride submitted a 28(j) letter calling our attention
to Metz v. Laramie County School District No. 1, 173 P.3d 334, 347 (Wyo. 2007).
Metz involved an alleged breach of an employment agreement that specified,
“[a]ny employee . . . who considers that he has been discharged or disciplined
without proper cause . . . shall have the right to appeal such discharge in
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accordance with the provisions of the grievance procedure set forth in this
agreement.” Id. at 346 (alterations in original). Because the plaintiff did not
exhaust the grievance procedures, the defendant argued her contract claim was
barred under Bryant. The Wyoming Supreme Court, however, differentiated
Bryant based on the language of the contract. In Bryant, the contract specified:
“Employee . . . shall file with the Company a written grievance.” Id. Because
this was “mandatory language requiring an employee to file a grievance,” failure
to do so barred the claim. Id. at 347. The Metz contract, however, only stated
that the employee “shall have the right” to file a grievance, indicating a
permissive, rather than mandatory intent. Id. 4 Thus, Metz teaches that
“whether . . . grievance procedures were mandatory [is] to be determined by
applying the usual rules of contract interpretation.” Id. at 348. 5
4
The District of Wyoming reached a similar conclusion in a related case.
See Order, Titus v. Laramie Cnty. Sch. Dist. #1, No. 05-CV-098, at 10 (D. Wyo.
Jan. 26, 2006) (“Any intent by the school district to make the grievance process
mandatory is ambiguous at best. Such an intent could have been clearly stated by
Defendant when drafting the handbook language. . . . Because the Court finds that
the grievance procedures set forth in Defendant’s Employee Handbook are
permissive, not mandatory, Plaintiff had no obligation to exhaust those
procedures before bringing suit.”).
5
Some courts have framed the exhaustion inquiry in jurisdictional terms.
See, e.g., Order, Titus, No. 05-CV-098, at 7. Metz explained, however, that the
inquiry only takes on a jurisdictional dimension when statutory law vests an
administrative body with jurisdiction to hear grievances in the first instance. See
Metz, 173 P.3d at 347. Here, as in Metz, no government agency or statutory
restriction is involved, so we “apply[] the usual rules of contract interpretation”
without questioning our jurisdiction to resolve the claim. Id. at 348. This
(continued...)
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Here, McBride’s contract explicitly stated that the contractual grievance
procedure “shall be the exclusive and mandatory procedure for challenge of a
dismissal . . . . Failure to timely request a review . . . shall waive any right of the
employee to contest the dismissal . . . . In cases where the review is . . . not
timely sought . . . the dismissal shall be deemed valid and binding on the
employee.” Supp. App. at 101–02. It is difficult for us to imagine a more
unambiguous statement of mandatory intent.
McBride argues Peak waived its right to enforce the seven-day limit by
commencing an investigation into her allegations of fraud even though the seven-
day limit had already passed. We disagree. Under Wyoming law, waiver requires
that the intent to relinquish a right be manifested unequivocally. Jackson State
Bank, 837 P.2d at 1086. In our view, the Board commencing an investigation into
McBride’s allegations did not unequivocally demonstrate an intent to waive any
terms in the employment contract. To the contrary, investigating a former
business manager’s allegations of fraud is consistent with what any reasonable
board likely would do under the circumstances, regardless of the board’s
intentions vis-a-vis the former employee or the employment contract.
McBride next claims Peak cannot enforce the seven-day limitations period
because the employment contract was illusory. But this argument does not help
5
(...continued)
approach is consistent with Bryant, which affirmed a grant of summary judgment
rather than dismissing for lack of jurisdiction. See Bryant, 701 F.2d at 1168.
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McBride. A party seeking to be excused from performance under an illusory
contract cannot then turn around and enforce the illusory contract against the
other party; McBride cannot “have [her] cake and eat it, too.” Pro Edge, L.P. v.
Gue, 451 F. Supp. 2d 1026, 1036 (N.D. Iowa 2006) (refusing to enforce an invalid
contract against either party).
Finally, McBride argues that we should excuse the seven-day requirement
because pursuing the grievance procedures in the contract would have been futile.
The only evidence she cites in support of this argument is a deposition statement
by the Board President: “There isn’t a chance in hell I would have rehired her.”
App. 127. But the context in which this statement was made clearly indicates that
the Board President only reached this conclusion after investigating McBride’s
allegations of fraud and speaking with several Peak employees regarding
McBride’s negative influence on morale. In addition, the record shows the Board
President did not have controlling authority over the decision to rehire McBride.
[Id. at 126.] Thus, this statement by the President, viewed in context, does not
give rise to an inference that it would have been futile for McBride to pursue the
contract remedies.
Because McBride was not excused from pursuing the grievance procedures
specified in her employment contract, the district court correctly found her
contract claim to be barred.
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4. Breach of Implied Covenant of Good Faith and Fair Dealing
McBride next argues that her employment relationship with Peak included
an implied covenant of good faith and fair dealing, on account of her “special
relationship” as Peak’s accountant. McBride claims Peak broke this covenant by
terminating her.
Under Wyoming law, every employment contract contains an implied
covenant of good faith and fair dealing. Wilder v. Cody Country Chamber of
Commerce, 868 P.2d 211, 220 (Wyo. 1994). But breaches of this covenant are
not actionable in tort unless “a special relationship of trust and reliance exists
between the employer and the employee.” Dubrowski v. State ex rel. Wyo. Liquor
Comm’n, 1 P.3d 631, 633 (Wyo. 2000). This special relationship arises only in
“rare and exceptional cases.” Springer v. Blue Cross & Blue Shield of Wyo., 944
P.2d 1173, 1178 (Wyo. 1997). “A special relationship sufficient to support a
cause of action can be found by the existence of separate consideration, rights
created by common law or statute, or rights accruing with longevity of service.”
Id. “Usually, such a special relationship can be found only in a long-term
employment relationship, coupled with a discharge calculated to avoid employer
responsibilities to the employee.” Hoflund v. Airport Golf Club, 105 P.3d 1079,
1087 (Wyo. 2005). “[M]ere longevity of service is not sufficient to create the
special relationship.” Trabing v. Kinko’s, Inc., 57 P.3d 1248, 1256 (Wyo. 2002).
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McBride argues she had a special relationship of trust and reliance
stemming from her role as Peak’s business manager and accountant. She reasons
that her fiduciary and professional duties immunized her from termination for any
of her actions made in furtherance of Peak’s code of ethics and the ethics of the
accounting profession.
The Wyoming Supreme Court, however, rejects the existence of a special
relationship based on fiduciary duty. The court was confronted with this type of
argument in Andrews v. Southwest Wyoming Rehabilitation Center, 974 P.2d 948(Wyo. 1999). There, the plaintiff, the former vice president of the defendant
employer, claimed his firing violated the implied covenant of good faith and fair
dealing because, as an officer of a nonprofit corporation, his fiduciary duties to
the employer created the requisite “special relationship.” See id. at 950. The
court disagreed:
The implied good faith covenant involves a “special element of
reliance” by the aggrieved party, the type of trust and dependency
that is found, for example, in insurance relationships . . . . [I]t goes
too far to say that an officer exercising his duty of care . . . has a
right not to be terminated. On the contrary, the Act provides that a
board may remove an officer at any time with or without cause. [The
statute] clearly vitiates Andrews’ contention that he should be
allowed to rely on his employer to maintain his employment until it
is determined that he has not acted, or can no longer act, in the
corporation’s best interest.
Id. Thus, a fiduciary relationship alone does not establish a special relationship
of trust and reliance—the plaintiff must show something more.
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McBride claims that “[t]he hallmark of the duty of good faith and fair
dealing is that neither party will do anything that will injure the right of the other
to receive the benefit of the agreement.” Reply Br. at 20. But that statement is
an overbroad description of breaches of the implied covenant of good faith that
are actionable in tort. McBride fails to identify any “rights created by common
law or statute” that would create a qualifying special relationship with Peak.
McBride also argues that her nine-year term of service is sufficient to
create a fact question whether a special relationship existed. But again, “mere
longevity of service is not sufficient to create the special relationship.” Trabing,
57 P.3d at 1256. Rather, longevity of service is relevant only insofar as the
employer terminated the employee to deprive her of some benefit, such as
retirement income. See id. McBride does not allege that her firing had anything
to do with Peak’s desire to deprive her of benefits accrued on account of her nine
years of service. Accordingly, longevity of service cannot be a basis for her
claim.
In sum, we find no allegations that would support the existence of a special
relationship sufficient to allow a tort claim for breach of duty of good faith and
fair dealing, and this claim fails as a matter of law.
5. Defamation
The record shows that several of McBride’s coworkers made intemperate
remarks and insults behind her back via email. McBride became aware of these
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messages during the course of discovery in the court below. McBride claims
these messages constitute defamation per se that entitles her to a recovery without
proof of damages.
Under Wyoming law:
A defamatory communication is one which tends to hold the plaintiff
up to hatred, contempt, ridicule or scorn or which causes him to be
shunned or avoided; one that tends to injure his reputation as to
diminish the esteem, respect, goodwill or confidence in which he is
held. To be actionable [as a per se matter], the defamatory or
disparaging words must affect the plaintiff in some way that is
peculiarly harmful to one engaged in his trade or profession.
Abromats v. Wood, 213 P.3d 966, 969 (Wyo. 2009). Defamatory speech
“purport[s] to state or imply actual, known facts.” Dworkin v. L.F.P., Inc., 839
P.2d 903, 915 (Wyo. 1992). “Abusive epithets, vulgarities and profanities are
nonactionable. The ad hominem nature of such language easily identifies it as
rhetorical hyperbole which, as a matter of law, cannot reasonably be understood
as statement of fact.” Id.Some of the allegedly defamatory statements here are blocked by
Wyoming’s one-year statute of limitations. W YO . S TAT . § 1-3-105(a)(v)(A).
Although McBride argues the statements form a pattern constituting a single
“continuing tort” that survives the statute of limitations, the continuing-tort
doctrine is inapplicable here because each statement was a discrete, potentially
actionable occurrence. See Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir.
2002) (“The [continuing-tort] doctrine applies where there is no single incident
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that can fairly or realistically be identified as the cause of significant harm. Here,
however, publication of the book was a single incident. ‘[A] cause of action for
defamation accrues immediately upon the occurrence of the tortious act and thus,
is not appropriate for the continuing violation exception.’” (quoting Lettis v. U.S.
Postal Serv., 39 F. Supp. 2d 181, 205 (E.D.N.Y. 1998)). Accordingly, we will
consider only statements falling within the one-year period.
Most of the allegedly defamatory statements are “abusive epithets” or
“vulgarities.” Dworkin, 839 P.2d at 915. McBride’s coworker’s called her, for
example, “McFreakazoid,” “Madusa,” and “McBitch,” among others. App.
81–119. While unbecoming, such “rhetorical hyperbole” is not actionable.
Dworkin, 839 P.2d at 915.
There is only one statement within the statute of limitations that could not
be characterized as an abusive epithet: a message from Seigel to Birney regarding
McBride’s timesheets. Seigel, the Peak employee responsible for tracking other
employees’ time, complained that McBride was misreporting her time, recording
8-hour days when she in fact arrived late or left early. Seigel told Birney
McBride’s actions were the equivalent of “purloining” two or three computers.
App. at 148. Because McBride does not allege actual injury resulting from this
statement, she must show the statement was “peculiarly harmful to one engaged in
[her] . . . profession”—that of an accountant. Abromats, 213 P.3d at 969.
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While the accusation that someone is skipping work may be harmful to
them in a way that mere name-calling is not, the Restatement (Second) of Torts,
which Wyoming courts follow, see Hoblyn v. Johnson, 55 P.3d 1219, 1233 (Wyo.
2002), makes clear that a “peculiarly” harmful statement is one that would injure
members of the plaintiff’s profession in an unusual or unique way. For example,
a false statement that a lawyer is unqualified to practice law, or that a merchant is
insolvent, is slanderous per se; but a statement that a professor is a drunkard, or
that a bricklayer is a hypocrite, is not slanderous without proof of injury. R EST .
2 D T ORTS § 573.
Here, there is no argument that Seigel’s accusations were particularly
harmful to McBride in her profession; they only imply she was not a particularly
diligent employee. Thus, without proof of injury, McBride’s defamation claim
fails as a matter of law. See Wilder, 868 P.2d at 224.
6. Sex Discrimination
Lastly, McBride brings a federal sex discrimination claim under Title VII
of the Civil Rights Act. McBride asserts two bases for her claim. First, she
alleges discrimination based on her sex and her nonconformance with the female
stereotype of submissiveness. Second, she alleges Peak’s leaders tolerated a
hostile work environment.
In a sex discrimination claim under Title VII, the plaintiff must show,
among other things, that she was discriminated against because of her sex.
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Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007). Although
McBride characterizes her claim as a “sex-plus” discrimination claim, the claim is
perhaps better characterized as a sex stereotyping claim. In a “sex-plus” claim,
the plaintiff must show that the employer applied a requirement to one sex but not
the other, and then discriminated based on that requirement. Coleman v. B-G
Maint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1203 (10th Cir. 1997). For example,
an employer that refuses to hire women with young children, but is willing to hire
men with young children, may be liable for sex discrimination. See id. In a
stereotyping claim, the plaintiff must show that employer discriminated against
her based on her “failure to conform to stereotypical gender norms.” Etsitty v.
Utah Transit Auth., 502 F.3d 1215, 1223 (10th Cir. 2007). Here, the difference
between a sex-plus claim and a stereotyping claim is not significant, because
McBride’s claim fails however it is characterized.
McBride alleges that her supervisor, Dr. Birney, required her to comply
with a submissive stereotype. But the submissive expectation McBride alleges is
a willingness to tolerate financial irregularities, which has nothing to do with a
sex stereotype. Nor does she provide evidence that women employees “were
treated differently from similarly situated members of the opposite gender.” Id. at
1204. The only statement Birney made that could be construed as sex
stereotyping was his response to McBride’s question about how to make her
subordinates comply with Peak’s policies; McBride claims Birney told her to
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“change my hair color [and] the way I dressed.” App. at 66. As the district court
found, this comment had nothing to do with stereotyping based on
submissiveness, and in any event was an “isolated comment in the context of nine
years of employment.” Aplt. Br. Att. at 18. Such comments are “generally
considered too abstract to support an inference of discrimination.” Adamson v.
Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1151 (10th Cir. 2008).
Therefore, her stereotyping claim cannot survive summary judgment. 6
With regard to her hostile work environment claim, McBride alleges
several abusive sex-related comments from some of her female colleagues. To
make a claim of sex discrimination based on a hostile work environment, “a
plaintiff must show (1) that she was discriminated against because of her sex; and
(2) 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.” Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1058 (10th
Cir. 2009).
Because the allegedly abusive comments came from coworkers of the same
sex as McBride, she must demonstrate one of three factual circumstances: (1) that
the harasser was motivated by sexual desire; (2) that the harasser was motivated
6
Insofar as McBride also alleges a Title VII retaliation claim, it likewise
fails. Birney’s isolated comment does not “directly show that retaliatory animus
played a ‘motivating part’ in the employment decision,” Fye v. Okla. Corp.
Comm’n, 516 F.3d 1217, 1226 (10th Cir. 2008); nor does it suggest Peak’s
reasons for terminating her were pretextual, see id. at 1227.
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by hostility to the presence of the victim’s sex in the workplace; or (3) that the
harasser treated males and females differently in a mixed-gender workplace. See
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998); Dick v. Phone
Directories Co., 397 F.3d 1256, 1263 (10th Cir. 2005). But McBride alleges no
facts that would support finding any of these three circumstances, and our own
review of the record reveals none.
Even if McBride could overcome these hurdles, the record would still not
support a finding that her work environment “was both objectively and
subjectively hostile or abusive” as our case law requires. Morris v. City of Colo.
Springs, 666 F.3d 654, 664 (10th Cir. 2012). A plaintiff in McBride’s position
must show “that the discrimination was sufficiently severe or pervasive such that
it altered the terms of conditions of her employment and created an abusive
working relationship.” Id. Although McBride “states that she was harassed,”
Aplt. Br. at 40, the only specific instances of harassment she alleges are Birney’s
isolated comment and the unprofessional emails sent by her coworkers. While the
emails included language that might be characterized as abusive, McBride
concedes that she was unaware of the emails until after she was terminated. Thus,
those emails, standing alone, cannot support an inference that McBride
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“experienced a hostile work environment due to sexual discrimination.” Id. at
669 (emphasis added). 7
In sum, McBride cannot show she was discriminated against because of her
sex. Therefore, her hostile work environment claim fails.
C. Denial of Expanded Discovery
Finally, McBride appeals the district court’s denial in part of her Motion to
Compel additional discovery. Primarily, McBride sought discovery of additional
emails archived in Peak’s computer systems.
Although the plaintiff bears the burden of showing the district court abused
its discretion in denying an evidentiary motion, McBride offers nothing beyond
conclusory allegations and a recitation of Rule 26(b). She cites no case law and
offers no facts on which we could conclude that the district court “commit[ted] a
legal error or relie[d] on clearly erroneous factual findings.” Trentadue, 572 F.3d
at 806. In addition, Peak convincingly explains why the district court’s decision
was reasonable. McBride had extensive pre-summary judgment discovery and
access to thousands of documents—both those produced in discovery and those
she had taken home with her upon termination. And she did not explain how a
particular line of discovery inquiries would further substantiate her claims.
7
We do not address whether abusive communications unknown to the
plaintiff during the time of her employment could support of an inference of a
hostile work environment in combination with more direct evidence of abuse. As
discussed above, Birney’s isolated remark does not constitute such evidence.
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Accordingly, we find McBride has failed to show the district court abused
its discretion.
III. Conclusion
For the reasons stated, we AFFIRM the judgment of the district court.
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