Rhonda Tenkku v. Normandy Bank ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3328
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Rhonda Tenkku, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Normandy Bank, *
*
Defendant - Appellee, *
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Submitted: September 11, 2003
Filed: November 7, 2003
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Before LOKEN, Chief Judge, HEANEY and HANSEN, Circuit Judges.
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LOKEN, Chief Judge.
In April 1996, Normandy Bank of St. Louis gave its vice president and cashier,
Rhonda Tenkku, a negative performance review and placed her on probation for six
months. Seven weeks later, Tenkku resigned to accept a higher-paying job in
Tennessee. Tenkku then commenced this action against Normandy Bank, alleging
sex discrimination in violation of the Equal Pay Act, Title VII, and the Missouri
Human Rights Act (MHRA). See 29 U.S.C. § 206(d); 42 U.S.C. § 2000e-3(a); MO.
REV. STAT. §§ 213.010 et seq. After protracted discovery proceedings, the district
court1 granted summary judgment in favor of Normandy Bank. Tenkku appeals the
grant of summary judgment and the district court’s earlier discovery and sanction
orders. Reviewing the grant of summary judgment de novo, see Buettner v. Arch
Coal Sales Co., 216 F.3d 707, 713 (8th Cir. 2000), cert. denied, 531 U.S. 1077(2001), and the earlier orders for abuse of discretion, we affirm.
I. Summary Judgment Issues.
Tenkku joined Normandy Bank as an auditor in 1981. She was later made
director of marketing and a vice president of the bank. In 1991, Normandy Bank
fired another vice president, Randy Meyer. Tenkku assumed Meyer’s duties as
cashier, which placed her in charge of the bank’s accounting department. In mid-
1995, Tenkku learned from a former employee that she and two other female vice
presidents were being paid about $10,000 per year less than Meyer and the remaining
male vice presidents. Tenkku met with Robert Kueker, her supervisor, and Robert
Levin, the bank president, to complain of the wage disparity. Tenkku testified that
when she expressed her hope that management would resolve the wage disparity issue
internally, Levin responded, “if we have to go to outside agencies then obviously we
are not the right people for these jobs.” Tenkku interpreted that as a threat of
termination if she filed a charge of discrimination.
In response to Tenkku’s complaint, Kueker analyzed the salaries and
responsibilities of Normandy Bank’s officers, consulted trade association surveys to
compare those salaries with similar positions in the region, and concluded that
Normandy Bank’s salary policy was not discriminatory. Tenkku then filed a charge
of wage and retaliation discrimination with the Missouri Commission on Human
1
The HONORABLE TERRY I. ADELMAN, United States Magistrate Judge
for the Eastern District of Missouri, to whom the case was assigned with the consent
of the parties. See 28 U.S.C. § 636(c); FED. R. CIV. P. 73(b).
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Rights in November 1995, alleging that her complaint to management of wage
discrimination “was subject to a demeaning and disparaging response threatening my
job.” Normandy Bank received notice of the charges in early February 1996.
In January and February 1996, Normandy Bank’s certified public accountants
conducted their annual audit, and FDIC bank examiners conducted a periodic
examination of the bank. The auditors met with Kueker and Levin in late January to
report numerous problems with Tenkku’s supervision of the accounting department,
including deficiencies in specific accounts. The auditors later reported that, in late
February, they met with the FDIC examiners to correct erroneous entries Tenkku had
made to the retained earnings account, resulting in a net credit to retained earnings
of over $80,000. In addition, the auditors reported, “the FDIC examiners were not
pleased with the documentation or lack thereof supporting the Call Report or any of
the other accounting information received from [Tenkku].” Tenkku was passed over
for a raise in February or March 1996.
On April 10, 1996, Tenkku received her annual performance review, which
included placing her on six months probation. She responded in writing, conceding
some deficiencies, blaming most problems on staff shortages and the bank’s new
software, and requesting that “the review be reconsidered in light of the extenuating
circumstances.” On May 6, Tenkku filed an amended charge of discrimination
alleging that she had been the subject of an unwarranted and retaliatory review and
probation. In late May she resigned and again filed an amended charge of
discrimination, adding a constructive discharge allegation. This lawsuit followed.
A. Equal Pay Act and Wage Discrimination Claims. To recover under the
Equal Pay Act, Tenkku must prove that Normandy Bank discriminated on the basis
of sex by paying different wages to employees of opposite sexes “for equal work on
jobs the performance of which requires equal skill, effort, and responsibility, and
which are performed under similar working conditions.” 29 U.S.C. § 206(d)(1). If
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Tenkku meets this burden, Normandy Bank may avoid liability by proving any of the
four statutory affirmative defenses. See Corning Glass Works v. Brennan, 417 U.S.
188, 195-97 (1974) (explaining the respective burdens of proof). Thus, our inquiry
turns on whether Tenkku presented sufficient evidence that she and her male
colleagues performed “equal work in jobs that required equal skill, effort, and
responsibility” and were “performed under similar conditions.” Buettner, 216 F.3d
at 719. Normandy Bank’s potential affirmative defenses, on which it bears the
burden of proof, are not at issue.2
Tenkku first argues that her work was substantially equal to that of her
predecessor as cashier, Randy Meyer, who was paid a considerably larger salary. But
it is undisputed that Meyer had seven more years of experience at Normandy Bank
than Tenkku. More significantly, Normandy Bank submitted uncontroverted
evidence that Meyer’s job included numerous functions in addition to that of cashier.
When Meyer was terminated, Tenkku assumed his cashier duties, but his other
functions were spread among other officers, as one would expect when an employer
reduces its payroll by firing an officer deemed expendable. In these circumstances,
Tenkku’s conclusory allegation that her total work responsibilities were equivalent
to those performed by Meyer is insufficient to survive summary judgment. See
Sowell v. Alumina Ceramics, Inc., 251 F.3d 678, 683-84 (8th Cir. 2001).
2
In 29 C.F.R. § 1620.13(b)(2), the EEOC guidelines seemingly fail to recognize
the difference between proof of an Equal Pay Act claim, and proof of a Title VII
claim by indirect evidence under the McDonnell Douglas burden-shifting formula.
An Equal Pay Act plaintiff’s prima facie case -- that is, one that will avoid summary
judgment -- consists of sufficient evidence the employer paid different salaries to men
and women for equal work performed under similar conditions. At the summary
judgment stage of the proceedings, the employer’s justification for the differences is
irrelevant, unless it is strong enough to establish one of the statutory affirmative
defenses as a matter of law. But the plaintiff’s prima facie case may not be credited
by the fact-finder at trial, whether or not defendant offers an affirmative defense.
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Tenkku next argues that Normandy Bank violated the Equal Pay Act by failing
to pay her as much as its remaining male vice presidents. Each vice president was
responsible for a distinct department within Normandy Bank. Tenkku submitted no
evidence comparing the male vice presidents’ disparate responsibilities with her
responsibilities as vice president and cashier. Instead, she relies on her opinion “that
if someone is going to be promoted to the title of vice president they should have
sufficient duties and responsibility to warrant a vice president’s pay.” However,
“neither job classifications nor titles are dispositive for determining whether jobs are
equal for purposes of [the Equal Pay Act] and Title VII.” Hunt v. Neb. Pub. Power
Dist., 282 F.3d 1021, 1029 (8th Cir. 2002). Thus, summary judgment was
appropriate. “[T]here is no issue for trial unless there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
Tenkku also asserts wage discrimination claims under Title VII and the
MHRA. Title VII wage discrimination claims based on unequal pay for equal work
are analyzed under Equal Pay Act standards. See Buettner, 216 F.3d at 718-19, and
cases cited. To that extent, Tenkku’s Title VII and MHRA claims fare no better than
her Equal Pay Act claim. In addition, the Supreme Court has held that an employer
violates Title VII, but not the Equal Pay Act, if it intentionally depresses wages on
account of sex and there were no employees of the opposite sex doing equal work for
more pay. County of Washington v. Gunther, 452 U.S. 161 (1981). Although
Tenkku argues that Normandy Bank’s response to her wage complaint evidenced
intentional sex discrimination, she does not cite County of Washington v. Gunther,
and she bases her wage discrimination case on a comparison of the wages paid to
Normandy Bank vice presidents of opposite sexes. Accordingly, her Title VII and
MHRA claims must be considered under Equal Pay Act standards, and the district
court properly granted summary judgment dismissing those claims.
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B. Retaliation Discrimination Claims. Title VII prohibits an employer from
discriminating against any employee “because [she] has opposed any practice made
an unlawful employment practice by this subchapter, or because [she] has made a
charge . . . under this subchapter.” 42 U.S.C. § 2000e-3(a). A prima facie case of
retaliation discrimination requires a showing that plaintiff engaged in conduct
protected by Title VII and suffered an adverse employment action that was “causally
linked to the protected conduct.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136
(8th Cir.) (en banc), cert. denied, 528 U.S. 818 (1999). Tenkku’s wage complaints
to Normandy Bank management and her November 1995 charge of discrimination
were protected conduct. The district court assumed that Tenkku suffered adverse
employment actions when she was denied a raise and placed on probationary status
in early 1996. But the court granted summary judgment dismissing this claim
because “there is no evidence of causality.”
On appeal, Tenkku argues that in April 1996 she “was singled out for a special
detailed review to have her employment terminated unless some undefined progress
was made.” But she presented no evidence this review was anything other than a
regular annual performance review, similar to the poor review she received as cashier
in 1993, two years before the meeting with Kueker and Levin to discuss her salary
concerns, and more than two years before she filed her initial charge with the EEOC.
In January and February 1996, Normandy Bank’s independent auditors strongly
criticized her oversight of the accounting department, identifying specific accounting
deficiencies. The auditors reported that the FDIC bank examiners had been critical
as well. These specific criticisms by knowledgeable, independent third parties
warranted deferring Tenkku’s raise in February 1996 and were cited in the April 1996
performance review as the basis for placing her on six-month probation. These
“intervening unprotected [events] eroded any causal connection that was suggested
by the temporal proximity” of her protected conduct in 1995 and the adverse
employment actions in 1996. Kiel, 169 F.3d at 1136. In these circumstances, the
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district court properly granted summary judgment dismissing Tenkku’s retaliation
claims.
C. Constructive Discharge. Finally, Tenkku claims she was constructively
discharged by Normandy Bank when its intolerable atmosphere forced her to resign
in late May 1996 to take a higher paying job. “An employee is constructively
discharged when an employer deliberately renders the employee’s working conditions
intolerable and thus forces [her] to quit [her] job.” West v. Marion Merrell Dow, Inc.,
54 F.3d 493, 497 (8th Cir. 1995) (quotation omitted). Having failed to prove her
claims of wage and retaliation discrimination, Tenkku “has not established the
underlying illegality necessary to support a constructive discharge claim.” Barrett v.
Omaha Nat’l Bank, 726 F.2d 424, 428 (8th Cir. 1984). Moreover, given the criticism
of her job performance by the independent auditors and FDIC examiners, Tenkku has
totally failed to prove that the six-month probationary period established just seven
weeks before she resigned was part of a plan to force her to quit. “An employee who
quits without giving her employer a reasonable chance to work out a problem is not
constructively discharged.” West, 54 F.3d at 498.
II. Discovery and Sanction Issues.
In May 1996, the FDIC sent its official report of the February 1996
examination to Normandy Bank. The report was furnished to Tenkku before she
resigned, and she kept a copy when she left the bank. During discovery, the FDIC
claimed ownership of the report. The court ordered Tenkku to return her copy, and
the FDIC then produced a redacted copy for use in the litigation. Tenkku moved for
an order compelling the FDIC to provide her a copy of the full report, and both sides
moved for discovery sanctions. The court granted the FDIC’s motion for sanctions
and subsequently ordered Tenkku to pay $1,305.56 to reimburse the FDIC for its
costs and attorney’s fees in defending against her frivolous motion to compel. We
dismissed an interlocutory appeal of the discovery and sanction orders for lack of
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jurisdiction. Tenkku v. Normandy Bank, 218 F.3d 926 (8th Cir. 2000). Tenkku again
appeals those orders.
A. The Discovery Order. Tenkku argues that the district court erred in
ordering her to return her copy of the FDIC examination report and in allowing the
agency to produce redacted portions of the report in discovery. This contention is
without merit. We will not reverse a district court’s discovery ruling “absent a gross
abuse of discretion resulting in fundamental unfairness in the trial of the case.”
McGowan v. Gen. Dynamics Corp., 794 F.2d 361, 363 (8th Cir. 1986) (quotation
omitted). Here, Tenkku has not explained how any portion of the FDIC report that
was withheld from discovery would have enabled her to avoid summary judgment by
establishing a prima facie case of either wage or retaliation discrimination. Without
such a showing, there was no abuse of the district court’s substantial discretion in
conducting the discovery phase of the litigation. See 6 MOORE’S FEDERAL PRACTICE
§ 26.07[5] (3d ed. 2003).
B. The Sanction Orders. In response to Tenkku’s supplemental motion for
production of the full FDIC report, for sanctions, and for an order holding the FDIC
in contempt, the FDIC filed a cross motion for sanctions. The agency argued that
Tenkku’s motion “represents a continuing pattern of unreasonable and vexatious
conduct” by Tenkku’s counsel that warranted sanctions under Rule 11 of the Federal
Rules of Civil Procedure and under 28 U.S.C. § 1927, which authorizes sanctions
against an attorney who “multiplies the proceedings in any case unreasonably and
vexatiously.” The district court granted the FDIC’s motion. After the FDIC
submitted a declaration reciting its attorney time and costs in defending Tenkku’s
motion, the district court ordered “that plaintiff pay $1,305.56 to the FDIC.”
Section 1927 warrants sanctions when an attorney’s conduct “viewed
objectively, manifests either intentional or reckless disregard of the attorney’s duties
to the court.” Perkins v. Spivey, 911 F.2d 22, 36 (8th Cir. 1990) (quotation omitted),
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cert. denied, 499 U.S. 920 (1991). In imposing sanctions under § 1927, the district
court must make findings and provide an adequate explanation so that we may review
its determination that sanctions were warranted. See Lee v. L.B. Sales, Inc., 177 F.3d
714, 718-19 (8th Cir. 1999). “We review the district court’s factual findings for clear
error and its decision to award sanctions for an abuse of discretion.” Lee v. First
Lenders Ins. Servs., Inc., 236 F.3d 443, 445 (8th Cir. 2001).
In this case, the district court found that Tenkku’s counsel filed the motion for
sanctions one day after demanding “the full report” from the FDIC. The court
explained that this motion, “while frivolous of its own accord, is the latest example
of a pattern of unnecessary and hostile pleadings the court has been forced to review
in this matter,” all of which “created unnecessary and protracted delays in discovery.”
The record supports the court’s findings, and its decision to award the FDIC the costs
and fees it incurred in defending one frivolous motion was not an abuse of the court’s
substantial discretion. However, as there was no showing that Tenkku violated Rule
11 or vexatiously multiplied the proceedings, the court erred in imposing the sanction
on Tenkku, as opposed to her counsel.
Tenkku argues that a hearing was necessary before the court imposed
sanctions. However, the record reflects that Tenkku and her counsel were afforded
ample notice and opportunity to be heard on the question whether a sanction should
be imposed and the amount of the sanction. See Martens v. Thomann, 273 F.3d 159,
178 n.13 (2d Cir. 2001); cf. Chrysler Corp. v. Carey, 186 F.3d 1016, 1022 (8th Cir.
1999) (dealing with Rule 37 discovery sanctions). Tenkku further argues that the
FDIC failed to establish the reasonableness of the attorney’s fees it requested for
defending the frivolous motion. We have carefully reviewed the FDIC’s submission
and conclude the district court did not abuse its discretion in awarding $1,305.56 as
a reasonable sanction. In isolating the costs and fees a party has incurred because of
conduct that violated § 1927, “precision is not required.” Lee, 236 F.3d at 446.
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The judgment of the district court is affirmed. The last paragraph of the court’s
order dated February 9, 1999, is modified to provide “that plaintiff’s counsel, Susan
H. Mello, pay $1,305.56 to the FDIC . . . .”
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