Zisumbo v. McCleodusa Telecommunications Services, Inc. , 154 F. App'x 715 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 23, 2005
TENTH CIRCUIT
Clerk of Court
JODI ZISUMBO, formerly known as
Didier,
Plaintiff-Appellant,
No. 04-4119
v.
(District of Utah)
(D.C. No. 2:03-CV-12-DS)
McCLEODUSA
TELECOMMUNICATIONS
SERVICES, INC.,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge, KELLY and MURPHY, Circuit Judges.
I. INTRODUCTION
Jodi Zisumbo appeals the district court’s grant of summary judgment in
favor of McLeodUSA Telecommunications Services, Inc. (“McLeod”). Zisumbo
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
filed a complaint in the United States District Court for the District of Utah
alleging McLeod discriminated against her and subjected her to a hostile work
environment based on her pregnancy in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-5(f). Zisumbo also raised pendent state-law
claims for invasion of privacy and defamation. The district court concluded
Zisumbo had failed to present a genuine issue of material fact and that McLeod
was entitled to judgment as a matter of law on all claims set out in the complaint.
See Fed. R. Civ. P. 56(c).
On appeal, Zisumbo contends as follows: (1) she produced sufficient
evidence of pretext to send her disparate treatment claim to the jury; (2) she
produced sufficient evidence from which a jury could find the existence of a
hostile work environment; (3) she produced sufficient evidence to send her
negligent training and supervision claim to the jury; and (4) she produced
sufficient evidence from which a jury could conclude her working conditions
were so intolerable that she was constructively discharged from her employment
with McLeod. Exercising jurisdiction under 28 U.S.C. § 1291, this court affirms
in part and reverses in part. The matter is remanded to the district court for
further proceedings consistent with this opinion.
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II. BACKGROUND
A. Factual Background
McLeod hired Zisumbo as an account executive in December of 1999.
Shortly thereafter, McLeod promoted Zisumbo to the position of senior account
executive. In both positions, Zisumbo sold telecommunications services to
businesses. As a senior account executive, Zisumbo earned a salary of $30,000
plus commissions on her sales.
During her tenure at McLeod, Zisumbo’s direct supervisor was Kevin
Nelson. Zisumbo and Mark Walker were the only two senior account executives
on Nelson’s sales team. Nelson’s supervisor was Drew Peterson, the Director of
Sales in the Major Account division. Both Nelson and Peterson reported to
Robert Hatch, the Group Vice President for the Western Region.
Zisumbo first learned Nelson disapproved of the possibility of her getting
pregnant in April of 2000. Nelson had invited Zisumbo and Walker to lunch to
congratulate them on being the top performers on his team. After lunch, Nelson
said to Zisumbo, “You are not gonna go and get pregnant now, are you, Jodi?”
Zisumbo testified that she felt threatened by the remark and interpreted Nelson’s
comment as indicating he did not like pregnant women.
Approximately one month later, in May of 2000, Zisumbo learned she was
pregnant. The next day, she called Nelson to tell him the news; Nelson responded
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to the call with silence. Shortly thereafter, according to Zisumbo, Nelson’s
attitude toward and treatment of her changed considerably. For instance, Zisumbo
asserts Nelson came into her office “out of the blue” and said, “Hey, your new
nickname is going to be ‘prego.’” Zisumbo estimated that over the remainder of
her full-time employment at McLeod, Nelson referred to her as “prego”
approximately 75% of the time. During his deposition, Nelson indicated he could
not remember if he had referred to Zisumbo as “prego,” but he did indicate he had
called his wife “prego” during her pregnancy.
In addition to referring to her as “prego,” Zisumbo asserts Nelson’s
treatment of her changed in other ways as well. During the first four or five
months of Zisumbo’s employment at McLeod, Nelson had accompanied her on
cold calls to potential customers, and had felt comfortable enough with Zisumbo
that on one such occasion he had taken a detour to show her his childhood home.
Zisumbo testified that before her pregnancy, she “could do no wrong” in Nelson’s
eyes. By June the end of June 2000, however, Zisumbo’s weight began to
increase on account of her pregnancy, and Nelson’s treatment of her was “night-
and-day different compared to before” her pregnancy. According to Zisumbo,
prior to becoming aware that she was pregnant, Nelson had never spoken to her in
a loud or abusive tone. After he found out she was pregnant, however, Nelson
became increasingly rude and demeaning, reaching a point where he was yelling
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at her every time he talked to her. Zisumbo asserts that when she confronted
Nelson about his rude and abusive conduct, he told her to “quit” or “go on
disability” if she could not handle the stress of her pregnancy.
In her deposition, Zisumbo stated she complained to McLeod about
Nelson’s behavior on three or four occasions. On each occasion, Zisumbo
telephoned McLeod’s human resources department in Cedar Rapids, Iowa and
spoke to Jennifer Hansen. Zisumbo first complained to Hansen about Nelson’s
behavior on June 20, 2000. Zisumbo contends McLeod did not initiate an
investigation and Hansen did not follow up on her complaint.
Approximately one week later, on June 26, 2000, Zisumbo underwent a
performance evaluation. Nelson conducted the evaluation. The evaluation was
positive, particularly with regard to her sales results. The evaluation did note,
among other things, that Zisumbo needed to improve on her paperwork.
Despite this favorable performance evaluation, Zisumbo asserts Nelson
continued to harass her and single her out because of her pregnancy. Zisumbo
asserts that on approximately July 21, 2000, Nelson again approached her about
quitting work because of her pregnancy. When Zisumbo responded by informing
Nelson that he needed to quit harassing her, Nelson informed her that she was
being demoted from a senior account executive to an account executive. Zisumbo
protested and immediately left work. After she arrived home, she called both the
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Utah Antidiscrimination and Labor Division and Hansen to complain about
Nelson’s conduct. Zisumbo asserts that, as was the case with the earlier call to
Hansen, McLeod failed to follow up or investigate her complaints. Zisumbo
claims she called Hansen for a third time in the beginning of August, “[t]o let
them know what was going on.” Zisumbo told Hansen she “was pregnant, and []
told her that [Nelson] was harassing [her] because of [her] pregnancy, and [she]
would really like it if [Hansen] would talk to him or have someone speak to him
because [she] — [she] couldn’t have this going on any longer.” According to
Zisumbo, Hansen stated that she would talk to Nelson.
Toward the end of July of 2000, Zisumbo’s doctor recommended that she
be placed on indefinite bed rest because of complications from her pregnancy.
Zisumbo apparently misunderstood her doctor’s instructions, however, and
continued working until August 8, 2000. On that day, Nelson issued Zisumbo a
written warning on a document entitled “Disciplinary Action Form.” The
Disciplinary Action Form itemized Zisumbo’s performance problems; informed
her that from that day forward she would be expected to work out of the
Farmington, Utah office with the rest of Nelson’s sales team; and indicated that
she was being placed on a performance plan because she constantly argued with
peers and management, failed to employ adequately the “beat cop” method of
selling, and failed to arrive at work on time. Zisumbo was particularly upset
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about the required move to Farmington and viewed it as an attempt on the part of
Nelson to force her to quit. According to Zisumbo, she had been allowed to
continue working out of McLeod’s Sandy, Utah office even after the rest of her
team relocated to the Farmington office because the drive from her home to the
Farmington Office would add an additional sixty minutes to her daily commute.
Zisumbo called Hansen for the fourth and final time on August 8, 2000, to
complain about the disciplinary action taken by Nelson. Hansen told Zisumbo she
would talk to Nelson. Nevertheless, according to Zisumbo, McLeod never
investigated her complaints about Nelson.
Zisumbo did not return to work at McLeod after August 8th. Instead, after
being placed on permanent bed rest by her physician, she applied for and was
granted paid disability leave for the remainder of her pregnancy. While on
disability leave, McLeod paid Zisumbo $1335.00 every two weeks in short-term
disability benefits. In October of 2000, however, she received a disability check
that was approximately $335.00. Zisumbo stated in her deposition that when she
contacted Hansen to report the error, she was informed that Nelson was
responsible for the reduction in pay and that she should contact him directly.
Although Zisumbo called and left a message on Nelson’s cell phone, he never
returned the call and the deficiency was never corrected.
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Zisumbo gave birth to her fourth child on January 2, 2001. McLeod called
Zisumbo and instructed her to return to work effective February 25, 2001.
Apparently based on her history of poor treatment at the hands of Nelson,
Zisumbo declined the request to return to work and resigned instead.
B. Procedural Background
On January 24, 2001, Zisumbo filed a charge of discrimination with the
United States Equal Employment Opportunity Commission (“EEOC”) alleging sex
and pregnancy discrimination. In response to the charge, McLeod asserted
Zisumbo was demoted because of poor job performance. In particular, McLeod
asserted Zisumbo’s demotion “was based on her poor performance with the ‘back-
end’ sales process.” In support of this assertion, McLeod contended that
customers Linford Glass and Safehome Security had complained about Zisumbo’s
performance. In response to these assertions, Zisumbo submitted to the EEOC
letters from both Linford Glass and SafeHome Security rejecting both the
contention that Zisumbo’s efforts to service their accounts had been
unsatisfactory and that their service problems had been caused by clerical errors
on the part of Zisumbo. After reviewing material submitted by both Zisumbo and
McLeod, the EEOC concluded that McLeod’s “reason for the demotion and
transfer did not withstand scrutiny.” After conciliation efforts on the part of the
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EEOC failed, Zisumbo obtained a right-to-sue letter and filed suit in the United
States District Court for the District of Utah.
During fact discovery, McLeod deposed Nelson’s immediate supervisor,
Peterson, and obtained the affidavit of Peterson’s immediate supervisor, Hatch.
Peterson and Hatch testified that at the time Zisumbo was employed at McLeod,
company-wide reorganizations were common, typically occurring every six
months; that Zisumbo’s demotion was the result of one such reorganization; that
higher-ups at McLeod had determined to reduce the number of senior account
executives on Nelson’s team from two to one based on changing needs in the
western sales region; and that the decision to retain Walker as a senior account
executive instead of Zisumbo was a “no-brainer based on Walker’s demonstrably
superior sales numbers.” 1 Based on Peterson’s testimony and Hatch’s affidavit,
McLeod changed its explanation for Zisumbo’s demotion from “poor
performance” to “corporate reorganization.”
McLeod filed a motion for summary judgment. The district court granted
the motion in full, dismissed Zisumbo’s complaint with prejudice, and entered
judgment in favor of McLeod. As to Zisumbo’s disparate treatment claim, the
district court concluded that McLeod had advanced a legitimate,
1
From January to June, 2000, Walker brought in $46,322.91 in revenue,
while Zisumbo brought in $16,997.94.
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nondiscriminatory reason for demoting Zisumbo—the corporate reorganization
and Walker’s superior sales numbers—and that Zisumbo had failed to create a
genuine issue of material fact regarding pretext. In so doing, the district court
specifically concluded McLeod’s changed statement as to the reason for
Zisumbo’s demotion, coming as it did after significant discovery, was insufficient
to create a genuine question of fact about McLeod’s current statement that it had
demoted Zisumbo because of a need for corporate restructuring. The district
court dismissed Zisumbo’s hostile work environment claim on the basis that,
although boorish and rude, Nelson’s alleged conduct was not so severe or
pervasive so as to create an objectively hostile work environment. The district
court concluded Zisumbo’s negligent-training-and-supervision claim failed (1)
because McLeod had no duty to promulgate an antidiscrimination policy with a
complaint mechanism and (2) Zisumbo’s conclusory allegations about McLeod’s
failure to follow up on her complaints, unsupported by any evidence in the record
about how McLeod actually responded, were insufficient to support a negligence
claim. The district court dismissed Zisumbo’s constructive discharge claim for
the same reasons that it dismissed her hostile work environment claim.
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III. DISCUSSION
A. Standard of Review
This court reviews the district court’s entry of summary judgment de novo.
Green v. New Mexico, 420 F.3d 1189, 1192 (10th Cir. 2005). Summary judgment
is appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). “The moving party is
entitled to summary judgment where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party.” Penry v. Fed. Home Loan
Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998) (quotation and alteration
omitted). In applying this standard, “[w]e view the evidence, and draw
reasonable inferences therefrom, in the light most favorable to the nonmoving
party.” Green, 420 F.3d at 1192.
B. Analysis
1. Disparate Treatment Claim
Title VII prohibits an employer from “discriminat[ing] against any
individual with respect to [] compensation, terms, conditions, or privileges of
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employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). 2
Because Zisumbo relies on circumstantial evidence to establish unlawful
discrimination, this court applies the three-step burden-shifting framework set
forth in McDonnell Douglas and its progeny. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 800-07 (1973); Plotke v. White, 405 F.3d 1092, 1099 (10th
Cir. 2005). Under this framework, the aggrieved employee must first establish a
prima facie case of prohibited employment action. Plotke, 405 F.3d at 1099. The
burden of establishing a prima facie case is not onerous; it is, instead, a simple
burden of production involving no credibility assessment. Id. “If the employee
makes a prima facie showing, the burden shifts to the . . . employer to state a
legitimate, nondiscriminatory reason for its adverse employment action.” Id.(quotation omitted). “If the employer meets this burden, then summary judgment
is warranted unless the employee can show there is a genuine issue of material
fact as to whether the proffered reasons are pretextual.” Id.For purposes of McLeod’s summary judgment motion, the district court
assumed Zisumbo satisfied her initial burden of establishing a prima facie case of
sex discrimination. The district court then moved on to consider the second and
2
The overwhelming import of Zisumbo’s allegations is that McLeod,
through Nelson, discriminated against her on the basis of her pregnancy. Title
VII makes clear, however, that the term “because of sex” in § 2000e-2(a)(1)
includes discrimination “because of or on the basis of pregnancy, childbirth, or
related medical conditions.” 42 U.S.C. § 2000e(k).
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third steps of the McDonnell Douglas framework. At the second stage of
McDonnell Douglas, the district court concluded McLeod had met its burden of
producing a legitimate nondiscriminatory explanation for its decision to demote
Zisumbo from a senior account executive to an account executive: McLeod
needed to reorganize its sales personnel by reducing the number of senior account
executives and Walker was chosen to retain the sole remaining senior account
executive position on Nelson’s team because he had far superior sales figures than
Zisumbo. Finally, at the third stage of McDonnell Douglas, the district court
concluded Zisumbo had not created a material issue of fact as to pretext and, thus,
McLeod was entitled to summary judgment.
On appeal, both Zisumbo and McLeod assume Zisumbo met her burden of
establishing a prima facie case of discrimination and McLeod met its burden of
producing a legitimate, nondiscriminatory reason for Zisumbo’s demotion.
Accordingly, both parties focus only on the question whether Zisumbo created a
genuine issue of fact as to pretext, thereby precluding summary judgment. This
court will likewise focus exclusively on that question. 3
3
In the section of her brief on appeal labeled “Statement of Facts,” Zisumbo
asserts she was subject to four separate adverse employment actions after she
informed Nelson she was pregnant. Nevertheless, in the section of her brief
addressing the district court’s grant of summary judgment to McLeod on her
disparate impact claim, Zisumbo focuses exclusively on her demotion from senior
account executive to account executive. Accordingly, in examining whether
(continued...)
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“A plaintiff can show pretext by revealing such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder
could rationally find them unworthy of credence.” Plotke, 405 F.3d at 1102(quotation omitted). Although “the evidence which a plaintiff can present in an
attempt to establish that a defendant’s stated reasons are pretextual may take a
variety of forms,” Zisumbo’s arguments on appeal mainly focus on evidence that
McLeod’s stated reason for her demotion is false. Kendrick v. Penske Transp.
Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000) (quotation and alteration
omitted)(noting that adducing evidence that an employer’s stated reason for the
adverse employment action is false is one of three ways employees typically make
a showing of pretext). “[A] plaintiff’s prima facie case, combined with sufficient
evidence to find that the employer’s asserted justification is false, may permit the
3
(...continued)
Zisumbo has created a genuine issue of fact as to pretext, this court likewise
focuses exclusively Zisumbo’s demotion. Any argument that the district court
erred in granting McLeod summary judgment on Zisumbo’s disparate treatment
claim when viewed through the lens of an alternate adverse employment action is
waived. Fed. R. App. P. 28(a)(9)(A) (providing that an appellant’s brief must
contain “appellant’s contentions and the reasons for them with citations to the
authorities and parts of the record on which the appellant relies). See generally
Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995) (discussing
obligations imposed by Rule 28(a)(9)(A)).
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trier of fact to conclude that the employer unlawfully discriminated.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).
The factfinder’s disbelief of the reasons put forward by the defendant
(particularly if disbelief is accompanied by a suspicion of mendacity)
may, together with the elements of the prima facie case, suffice to
show intentional discrimination. Thus, rejection of the defendant’s
proffered reasons will permit the trier of fact to infer the ultimate
fact of intentional discrimination . . . .
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993); see also Desert Palace,
Inc. v. Costa, 539 U.S. 90, 100 (2003) (discussing Reeves).
On appeal, Zisumbo argues the district court erred in concluding she failed
to create a material issue as to whether McLeod’s articulated nondiscriminatory
reason for the demotion, “corporate reorganization,” was pretextual. In
particular, Zisumbo asserts a jury could conclude McLeod’s stated reason is false
based on its abandonment and repudiation of the reason for the demotion given to
the EEOC. Appellant’s Opening Brief at 26-27 (“Defendant’s ‘corporate
reorganization’ explanation was so substantially divergent from the ‘personal
performance’ reasons alleged earlier, that it appeared Defendant was attempting
to discard a flawed defense in favor of another having better prospects.”). In
support of her position, Zisumbo relies on this court’s recent decision in Miller v.
Eby Realty Group LLC, 396 F.3d 1105 (10th Cir. 2005). 4
4
Miller was issued after the briefing was complete in this case.
(continued...)
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In Miller, the jury found that the employer, Eby Realty Group LLC (“Eby”),
discriminated against Miller in violation of the Age Discrimination in
Employment Act. Id. at 1110. On appeal, Eby argued the district court erred in
denying its motion for judgment as a matter of law. Id. According to Eby,
“Miller failed to prove pretext because he did not sufficiently establish that Eby’s
[reduction-in-force (“RIF”)] explanation was false, and that even if the jury
disbelieved the RIF justification, the evidence was insufficient to infer that age
discrimination motivated its decision.” Id. at 1112. This court rejected Eby’s
arguments and held, in a passage particularly relevant to this appeal, as follows:
Mr. Miller also produced evidence that Eby gave the EEOC a
false reason for his termination. Eby stipulated at trial that Mr.
Miller’s performance was not a factor in its decision to fire him even
though it had previously told the EEOC performance was a factor.
Eby concedes, as it must, that this evidence suggests it gave a false
reason to the EEOC, but the company argues this does nothing to
prove that its other justification—RIF—was false. We disagree.
One of the primary roles of the factfinder is to assess
credibility in deciding how to view the evidence. Lamon v. City of
Shawnee, Kan., 972 F.2d 1145, 1159 (10th Cir. 1992) (“It is the
jury’s exclusive province to assess the credibility of witnesses and
determine the weight to be given to their testimony.”). Indeed, the
jury in this case was instructed that it could consider credibility “in
deciding the weight and credit” to give the evidence. The same
principle applies here. The factfinder is entitled to infer from any
“weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions” in the employer’s proffered reasons for its action that
4
(...continued)
Nevertheless, Zisumbo submitted a letter to the court pursuant to Fed. R. App. P.
28(j) identifying Miller and noting its applicability to the issues raised on appeal.
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the employer did not act pursuant to those reasons, Morgan v. Hilti,
Inc., 108 F.3d 1319, 1323 (10th Cir. 1997), and we can see no reason
to limit this inference to the specific proffered reason suffering from
an inconsistency. If the factfinder concludes that one of the
employer’s reasons is disingenuous, it is reasonable for it to consider
this in assessing the credibility of the employer’s other proffered
reasons.
Id.In response to Zisumbo’s arguments, McLeod asserts that its “different
explanations for the reassignment do not show a pretext for discrimination: rather,
the record shows only that both reasons were correct, both reasons were
legitimate business decisions, and neither reason was a pretext for
discrimination.” Appellee’s Brief at 18. A major problem with this argument is
that it represents a dramatic reversal of the position advanced by McLeod before
the district court. In its reply memorandum in support of summary judgment,
McLeod asserted Zisumbo’s allegations regarding the pretextual nature of
McLeod’s statements to the EEOC were “immaterial because her reassignment
was based on corporate readjustments of its sales teams and not on Zisumbo’s
performance.” Appellant’s App. at 411. That is, in seeking summary judgment,
McLeod specifically disclaimed its previous assertion to the EEOC that the
demotion was based on Zisumbo’s poor performance in “back-end” sales duties. 5
5
Instead, McLeod argued that Zisumbo (1) had not identified any authority
for the proposition that it was bound by its prior statements to the EEOC; and (2)
(continued...)
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Thus, it seems disingenuous for McLeod to now assert on appeal that its statement
to the EEOC was a “correct,” “legitimate business decision” supporting its
demotion of Zisumbo.
In any event, there are genuine issues of material fact as to whether the
reason McLeod proffered to the EEOC in support of its demotion of Zisumbo,
i.e., poor performance with the “back-end” sales process, is a “correct” and
“legitimate” statement of its reasons for Zisumbo’s demotion. In its brief on
appeal, the only evidence identified in support of its assertion that Zisumbo was
demoted because of poor performance is Zisumbo’s June 26, 2000 performance
review. The identified evaluation did note Zisumbo needed to improve on her
paperwork. Nevertheless, a jury could conclude Zisumbo’s problems with
paperwork were not that serious in light of the otherwise high scores received by
5
(...continued)
its change in position with regard to Zisumbo’s demotion was occasioned by a
change in counsel and the difficulty in tracking down those individuals at McLeod
that had made the demotion decision. As to the first of these arguments, although
Miller certainly does not indicate an employer is “bound” by prior statements
regarding the reasons for an adverse employment action, it does provide that a
change in explanation, accompanied by evidence that an original justification is
false, could allow a jury to conclude that a second justification is likewise false.
Miller v. Eby Realty Group LLC, 396 F.3d 1105, 1112 (10th Cir. 2005). As to its
second argument, we note simply that although this evidence is relevant to a
jury’s determination as to whether the change in justification was made in good
faith (i.e., there is a good reason it misstated the justification for Zisumbo’s
demotion before the EEOC), that argument certainly does not compel judgment in
its favor as a matter of law.
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Zisumbo in the evaluation. 6 Furthermore, McLeod did not even rely on the
performance review in support of its statements to the EEOC concerning
Zisumbo’s problems with “back-end” sales. Instead, McLeod relied on its
assertions that Zisumbo had failed to adequately care for customers during the
“back-end” sales process, specifically identifying customers Linford Glass and
SafeHome Security. As noted above, however, both Linford Glass and SafeHome
Security submitted letters to the EEOC stating that they were satisfied with
Zisumbo’s performance and that the technical problems they had with McLeod
could not be blamed on Zisumbo. See supra p. 8.
Given that (1) McLeod did not even argue below that its statement to the
EEOC was consistent with, and an alternate reason for, Zisumbo’s demotion, and
that (2) there is a material issue of fact as to the accuracy and veracity of
McLeod’s statements to the EEOC, this court concludes the district court erred in
6
The evaluation is set out in a “GRIP-R Grid.” On one axis of the grid, a
score between .5 and 5.0 is obtained by averaging the individual scores for the
four following components: growth, relationships, integrity, and passion. On the
other axis of the grid, a score of .5 to 5.0 is obtained based solely on results. On
the GRIP axis of the grid, the axis apparently affected by Zisumbo’s paperwork
problems, Zisumbo obtained a score of 4.0. She received a similar score on the
Results axis of the grid. On the face of the evaluation, it appears that a score of
4.0 is considered a good score. That is, on the results axis of the grid, Zisumbo’s
score of 4.0 was accompanied by the following comment: “SEE RESULTS.
That’s all I can say here. Jodi gets results.” On the GRIP axis of the grid,
Zisumbo received no score lower than a 3.5. Thus, a jury could conclude the
statements made by McLeod to the EEOC were untrue and, thus, a pretext for
discrimination.
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granting summary judgment in favor of McLeod on the question of disparate
treatment. See Reeves, 530 U.S. at 148 (“[A] plaintiff’s prima facie case,
combined with sufficient evidence to find that the employer’s asserted
justification is false, may permit the trier of fact to conclude that the employer
unlawfully discriminated.”); Miller, 396 F.2d at 1112 (“If the factfinder concludes
that one of the employer’s reasons is disingenuous, it is reasonable for it to
consider this in assessing the credibility of the employer’s other proffered
reasons.”). 7 In so doing, we fully recognize that at the time the district court
7
This court recognizes that
[t]he evidence establishing the prima facie case coupled with the
jury’s rejection of the employer’s explanation will not always support
a finding of discrimination, such as in cases where the “plaintiff
created only a weak issue of fact as to whether the employer’s reason
was untrue and there was abundant and uncontroverted independent
evidence that no discrimination occurred.”
Miller, 396 F.3d at 1113 (quoting Reeves, 530 U.S. at 148). Because McLeod did
not argue below, and does not argue on appeal, that it is entitled to summary
judgment even assuming the relevance of its change in justification for Zisumbo’s
demotion, we do not address the issue. This court does note, however, that the
record is not completely devoid of evidence controverting McCleod’s assertion
that it demoted Zisumbo because of the need to restructure its sales force.
According to Zisumbo’s testimony, Peterson, one of the individuals McLeod
asserts made the demotion decision, was aware that she was pregnant and had
expressed the following concern to her during a meeting in May: “I hope because
of your pregnancy your productivity is not going to go down.” Furthermore, in
his deposition, Peterson discussed the ongoing reorganizations at McLeod and
noted that the reshuffling of personnel usually resulted in employees being pushed
downward during a reorganization. That is, as the number of allotted strategic
sales executives was reduced, those left without a position moved down to senior
account executives, thereby displacing senior sales executives, and starting the
(continued...)
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granted summary judgment in McLeod’s favor, it did not have the benefit of this
court’s decision in Miller. Nevertheless, Miller compels the outcome in this case.
2. Hostile Work Environment Claim
Zisumbo asserts the district court erred in granting summary judgment in
favor of McLeod on her hostile work environment claim. In granting summary
judgment in favor of McLeod, the district court determined a rational jury could
not find the conduct alleged, even if proven true, was so severe or pervasive so as
to create an objectively hostile work environment. See Faragher v. City of Boca
Raton, 524 U.S. 775, 787 (1998) (holding that in order to be actionable under
Title VII, “a sexually objectionable environment must be both objectively and
subjectively offensive, one that a reasonable person would find hostile or abusive,
and one that the victim in fact did perceive to be so”). It is uncontested that
Zisumbo has adduced sufficient evidence to create a genuine issue of fact as to
whether she subjectively considered the working environment to be abusive on the
basis of her pregnancy. Accordingly, on appeal, this court focuses on the
7
(...continued)
cycle over again. There is at least some question, however, as to whether this
course occurred in Zisumbo’s case. In her affidavit, Zisumbo averred that not
only were there senior account executives and account executives on her sales
team, but that there was also a major account executive. The major account
executive on the team was a man. Zisumbo testified that although she was
demoted, the man occupying the major account executive position was not
demoted. A jury could infer from this series of events that this reorganization did
not occur in the usual method as described by Peterson.
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question whether Zisumbo’s allegations, if true, amounted to an objectively
abusive work environment.
“For a hostile environment claim to survive a summary judgment motion, a
plaintiff must show that a rational jury could find that the workplace was
permeated with discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment.” MacKenzie v. City & County of
Denver, 414 F.3d 1266, 1280 (10th Cir. 2005) (quotation and alteration omitted).
“Severity and pervasiveness are evaluated according to the totality of the
circumstances, considering 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.” Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir. 2005)
(citation and quotation omitted). In applying this standard, we are mindful of the
Supreme Court’s admonition that courts should “filter out complaints attacking
the ordinary tribulations of the workplace, such as the sporadic use of abusive
language, gender-related jokes, and occasional teasing.” Faragher, 524 U.S. at
788 (quotation omitted).
Applying the standard set out above, this court concludes that Zisumbo’s
allegations, if proven true, amount to an objectively hostile work environment.
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The conduct alleged by Zisumbo is both pervasive and severe. Zisumbo testified
in her deposition that shortly after she told Nelson she was pregnant, he came into
her office “out of the blue” and told her that her “new nickname is going to be
‘prego.’” If Nelson had used that pregnancy-related epithet infrequently, this
court might agree that a reasonable person would not find the working atmosphere
hostile or abusive under the standards set out by the Supreme Court. Id.; see also
Carrero v. New York City Housing Auth., 890 F.2d 569, 577 (2d Cir. 1989)
(holding that incidents of environmental sexual harassment “must be more than
episodic; they must be sufficiently continuous and concerted in order to be
deemed pervasive”). Zisumbo testified, however, that Nelson used that epithet to
refer to her in approximately 75% of their interactions over the three-month
period after she disclosed to him that she was pregnant. We hardly think an
employment situation in which an employee was called a racial epithet in 75% of
her interactions with her direct supervisor would be considered anything other
than “pervasive.” See Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 78
(1998) (holding that in order to prove that alleged harassment is pervasive, the
employee must demonstrate the workplace was “permeated with discriminatory
intimidation, ridicule, and insult”). The result should be no different with a
pregnancy-related epithet.
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The allegations regarding Nelson’s pervasive use of a pregnancy-related
epithet do not stand alone. Zisumbo testified that within a month after she
informed Nelson of her pregnancy, he began harassing her on a consistent basis.
Zisumbo testified that “[e]very time I spoke to [Nelson] he would yell at me.”
Often, Nelson would suggest that Zisumbo quit or go on disability if she could
not handle the stress of being pregnant. Zisumbo testified that she had never seen
Nelson treat any other employee in that fashion and that he had never treated her
in that fashion before she disclosed to him she was pregnant. Thus, not only did
Nelson immediately begin referring to Zisumbo as “prego” upon learning of her
pregnancy, he also began acting in a hostile and abusive manner to Zisumbo
within a month of that announcement. Although this behavior was not overtly
based on Zisumbo’s pregnancy, “[f]acially neutral abusive conduct can support a
finding of gender animus sufficient to sustain a hostile work environment claim
when that conduct is viewed in the context of other, overtly gender-discriminatory
conduct.” O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1097 (10th Cir.
1999).
The evidence and reasonable inferences viewed in Zisumbo’s favor are
sufficient for a jury to conclude that Nelson’s consistent use of a pregnancy-
related epithet and campaign of abusive conduct were sufficiently severe and
pervasive so as to change the conditions of Zisumbo’s employment with McLeod.
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Id. at 1098 (noting that “the severity and pervasiveness evaluation is particularly
unsuited for summary judgment because it is quintessentially a question of fact.”
(quotation omitted)); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)
(“A discriminatorily abusive work environment . . . can and often will detract
from employees’ job performance, discourage employees from remaining on the
job, or keep them from advancing in their careers.”). Furthermore, the extensive
nature of the alleged conduct and the fact that the abusive conduct was allegedly
undertaken by Zisumbo’s direct supervisor is sufficient to distinguish this case
from those relied on by McLeod on appeal. See Shepherd v. Comptroller of Pub.
Accounts, 168 F.3d 871, 872 (5th Cir. 1999) (involving only intermittent sexually-
suggestive comments by a co-worker where the employee attested that “she
engaged in friendly discussions with [the alleged harasser] on almost a daily basis
and had a friendly relation with him at work and outside of work”); Quinn v.
Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) (noting that hostile
work environment claim had to be assessed solely on the basis of two minor
alleged instances of harassment and concluding that the instances were
“sufficiently isolated and discrete that a trier of fact could not reasonably
conclude they pervaded [the plaintiff’s] work environment”); Penry, 155 F.3d at
1261-63 (identifying no more than fifteen incidents involving two plaintiffs over
the course of three years); Skouby v. Prudential Ins. Co., 130 F.3d 794 (7th Cir.
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1997) (involving discriminatory actions of co-workers, not supervisors).
Accordingly, the district court erred in granting summary judgment in McLeod’s
favor on Zisumbo’s claim that she was subjected to a hostile work environment.
3. Negligent Training and Supervision
In her complaint, Zisumbo asserted that Title VII imposes upon all
employers a duty to promulgate antidiscrimination policies prohibiting unlawful
discrimination and harassment in the workplace and setting up mechanisms to
investigate and resolve complaints of discrimination. In granting summary
judgment in favor of McLeod on this claim, the district court concluded as
follows: (1) Title VII does not impose an affirmative duty on employers to
promulgate antidiscrimination policies; and (2) even assuming such a duty does
exist, Zisumbo failed to adduce sufficient evidence that McLeod had breached the
duty. Because this court agrees with the first rationale relied upon by the district
court in granting summary judgment in favor of McLeod, there is no need to
consider the question of evidentiary sufficiency.
In asserting that Title VII imposes upon McLeod a duty to promulgate an
antidiscrimination policy, Zisumbo does not rely at all on the language of Title
VII. This court’s review of the statute reveals no language suggesting such a duty
exists. 42 U.S.C. § 2000e et seq. Instead, Zisumbo relies exclusively on this
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court’s opinion in Jeffries v. Kansas, 147 F.3d 1220 (10th Cir. 1998). Jeffries is,
however, inapposite.
The question in Jeffries was not whether the employer was independently
liable in tort for failing to promulgate an antidiscrimination policy, but was,
instead, whether the employer was responsible under Title VII for an allegedly
hostile work environment created by one of the plaintiff’s co-workers. Id. at 1128
(“[W]e need not decide whether the single incident of Mr. Hoyt’s admittedly
inappropriate hug created a hostile work environment for Ms. Jeffries because we
hold that [the defendant employers] are not liable for his conduct or for failing to
respond to it.”). According to Jeffries,
This court has set forth the following grounds for holding an
employer liable for an employee’s actions:
An employer is liable for: (1) any tort committed by an
employee acting within the scope of his or her
employment; (2) any tort committed by an employee in
which the employer was negligent or reckless; or (3) any
tort in which the employee purported to act or speak on
behalf of the employer and there was reliance upon
apparent authority, or the employee was aided in
accomplishing the tort by the existence of the agency
relation.
Id. at 1228-29 (quoting Hirase-Doi v. U.S. West Commc’ns, Inc., 61 F.3d 777,
783 (10th Cir. 1995)). Hirase-Doi makes clear that in limiting the situations in
which an employer is liable for the harassing actions of one of its employees to
the list of situations set out above, it was adhering to the Supreme Court’s
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statement that employers are not automatically liable for acts of sexual
harassment perpetrated by their employees. 61 F.3d at 783 (citing Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986) for following proposition: “the
Supreme Court explained that we should look to agency principles for guidance in
determining when an employer is liable for hostile work environment sexual
harassment by its employees in violation of Title VII”); see also Meritor, 477
U.S. at 72 (“[W]e do agree with the EEOC that Congress wanted courts to look to
agency principles for guidance in this area. . . . For this reason, we hold that the
Court of Appeals erred in concluding that employers are always automatically
liable for sexual harassment by their supervisors.”).
Thus, far from creating an additional, independent avenue of employer tort
liability, Jeffries merely clarifies that proof of a hostile work environment is not
sufficient to prevail under Title VII. Instead, under the standard set out in
Jeffries, the plaintiff must also demonstrate that the employer is responsible for
the harassment under the agency principles identified above. 147 F.3d at 1228-
29. 8 Because neither the text of Title VII nor this court’s decision in Jeffries
8
Shortly after Jeffries was decided, the Supreme Court issued its decisions
in Bullington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City
of Boca Raton, 524 U.S. 775 (1998). Burlington and Faragher reexamined the
question of when an employer is responsible for sexual harassment perpetrated by
one of its employees. See Cadena v. Pacesetter Corp., 224 F.3d 1203, 1208-09
(10th Cir. 2000) (discussing Burlington and Faragher). The analysis of that
(continued...)
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support Zisumbo’s assertion of an independent duty on the part of McLeod to
promulgate and implement antidiscrimination policies, and because Zisumbo has
not identified any alternative source for such a duty, the district court properly
granted summary judgment in McLeod’s favor on Zisumbo’s negligent-
supervision-and-training claim.
4. Constructive Discharge
As a final matter, Zisumbo asserts the district court erred in granting
summary judgment in McLeod’s favor on her constructive discharge claim. “A
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. Trustees of State Colleges, 355 F.3d
1263, 1270 (10th Cir. 2004). In granting summary judgment in favor of McLeod,
the district court concluded Zisumbo had failed to demonstrate that her working
conditions were so intolerable that she had no alternative but to resign.
Zisumbo asserts that the record before the district court contained evidence
of sufficiently intolerable working conditions upon which a reasonable jury could
base a finding of constructive discharge. In support of this claim, Zisumbo
asserts that she was subjected to both disparate treatment and a hostile work
8
(...continued)
question by this court in Hirase-Doi and Jeffries has been superceded by the
analysis of the Supreme Court in Burlington and Faragher.
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environment at McLeod and asserts that because there is a material issue of fact
as to these matters there is also a material issue of fact as to the question of
constructive discharge. This court has held, however, that “conduct which meets
the definition of a ‘tangible employment action’ or ‘an adverse employment
action’ is not necessarily sufficient to establish a constructive discharge because a
constructive discharge requires a showing that working conditions imposed by the
employer are not only tangible or adverse, but intolerable.” Tran, 355 F.3d at
1270-71; see also Tutman v. WBBM-TV, Inc/CBS, Inc., 209 F.3d 1044, 1050 (7th
Cir. 2000) (“Working conditions for constructive discharge must be even more
egregious than the high standard for hostile work environment because in the
ordinary case, an employee is expected to remain employed while seeking
redress.” (quotations omitted)). This court, therefore, rejects Zisumbo’s assertion
that because she has created a sufficient issue of genuine fact to send her
disparate treatment and hostile work environment claims to the jury she is
necessarily entitled to take her constructive discharge claim to the jury as well.
Considered in light of the totality of the circumstances, this court concludes
no reasonable jury could find Zisumbo’s working conditions were so intolerable
at the conclusion of her maternity leave that she had no option but to resign. It is
true that Zisumbo has created an issue of fact as to whether she was demoted
because of her pregnancy and has adduced sufficient evidence, if believed by the
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jury, to support a determination that she was subjected to a hostile work
environment. It must be recognized, however, that those actions had occurred
many months prior to her resignation. Other than a single incident involving the
docking of her disability pay, which also occurred approximately three months
before she was asked to return to work, Zisumbo has pointed to no evidence in the
record indicating what her working situation would be like should she return to
McLeod.
Instead, Zisumbo asks this court to infer that the situation would be
unchanged because she would return to a job in which Nelson was her supervisor.
This assertion is not supported by any citation to the record. In fact, the record
reveals that during this time frame, Nelson was transferred to Billings, Montana.
Absent some evidence in the record that Zisumbo undertook an effort to
investigate what her working situation would be like should she return to McLeod
at the conclusion of her disability leave, no reasonable jury could find in her favor
on a constructive discharge claim. Cf. Woodward v. City of Worland, 977 F.2d
1392, 1402 (10th Cir. 1992) (holding that because plaintiff never took advantage
of a possible alternative to resignation, no reasonable jury could find plaintiff was
constructively discharged). Hence, the district court properly granted summary
judgment in McLeod’s favor on this claim.
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IV. CONCLUSION
The district court’s grant of summary judgment to McLeod on Zisumbo’s
disparate treatment and hostile work environment claims is REVERSED. The
district court’s grant of summary judgment to McLeod on Zisumbo’s negligent
training and supervision and constructive discharge claims is AFFIRMED. The
matter is REMANDED to the district court for further proceedings not
inconsistent with this opinion.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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