Johnson v. E.A. Miller, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 25 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
PATRICIA JOHNSON, MOSESE
FIEFIA, OFA FIEFIA, JAIME
GOROSTIETA, ESTEBAN RIVERA,
LORENZO RODRIGUEZ, ANTONIO No. 97-4200
RUEDA, VICTOR JAMES (D.C. No. 94-NC-148B)
SHEPARD, as the heir and personal (D. Utah)
representative of Ruby Shepard,
LOLOHEA TUPOU, TAUFA TUPOU,
Plaintiffs - Appellants,
vs.
E.A. MILLER, INC., RICK BLACK,
TED MILLER,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before PORFILIO, KELLY, and LUCERO, Circuit Judges.
Submitted on the briefs: **
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
After examining the briefs and appellate record, this panel has
**
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G).
The cause therefore is ordered submitted without oral argument.
Plaintiffs-appellants filed numerous claims, under both state and federal
law, related to their former employment with Defendant-appellee E.A. Miller, Inc.
The district court dismissed each claim with prejudice except for Plaintiff Patricia
Johnson’s claim for breach of contract, which was dismissed without prejudice.
Our jurisdiction over this appeal arises under 28 U.S.C. § 1291, and we affirm.
Because the parties are familiar with the underlying facts, we will not
restate them unless necessary for the issue on review. Plaintiffs raise seventeen
issues, many of which overlap.
A.
Ms. Johnson asserts that the district court erred in granting summary
judgment on her claims of sexual harassment, sex, age, and religious
discrimination, and retaliation. We review a grant of summary judgment de novo,
applying the same legal standard as used by the district court. See Meyer v.
Conlon, 162 F.3d 1264, 1267 (10th Cir. 1998).
Under 42 U.S.C. § 2000e-5(e)(1), a charge alleging an unlawful
employment practice must be filed within 300 days of the last alleged
discriminatory act. Ms. Johnson filed her charge of sexual harassment on May
24, 1993. Thus, the district court cannot hear her claims of sexual harassment
unless she is able to allege at least one instance of such harassment on or after
July 21, 1992. This she has failed to do. Although she alleges that other forms of
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discrimination occurred after that date, we are unable to find any allegation of
sexual harassment, and as we stated in Martin v. Nannie and the Newborns, Inc.,
3 F.3d 1410, 1415 (10th Cir. 1993), “[i]t is not sufficient merely that acts
[involving sexual harassment] outside the required time limit had a continuing
effect within the statutory time allowed for suit.” As such, there was no error in
granting summary judgment on this claim.
We turn to Ms. Johnson’s sex discrimination claim. Title VII provides that
“[i]t shall be an unlawful employment practice for an employer . . . to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Ms. Johnson’s
claim fails because she has not made a sufficient showing that the treatment she
received by the defendants was because of her sex. Rather, it seems clear that the
conflicts she experienced were the result of a serious difference in opinion over
how health services were to be provided at E.A. Miller, Inc. The fact that Ms.
Johnson both is female and disagrees with the wisdom of the company’s business
decisions does not state a claim for sex discrimination. See Brandt v. Shop ‘N
Save Warehouse Foods, Inc., 108 F.3d 935, 938 (8th Cir. 1997), cert. denied, 118
S. Ct. 850 (1998).
Ms. Johnson also asserts that the district court erred in dismissing her age
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and religious discrimination claims for failure to exhaust administrative remedies.
However, contrary to her assertion, in the Tenth Circuit exhaustion is a
jurisdictional prerequisite to bringing a Title VII action in federal court. See
Jones v. Runyon, 91 F.3d 1398, 1399 n.1 (10th Cir. 1996); Khader v. Aspin, 1
F.3d 968, 970 (10th Cir. 1993). Thus we affirm the dismissal of these claims for
substantially the reasons given by the district court. See District Court Order of
August 23, 1995.
Ms. Johnson next asserts that the district court erred in granting summary
judgment on her retaliation claim. To establish a prima facie case of retaliation,
she must show “(1) protected opposition to discrimination . . . ; (2) adverse
action by the employer; and (3) a causal connection between the protected
activity and the adverse action.” Jeffries v. Kansas, 147 F.3d 1220, 1231 (10th
Cir. 1998) (quoting Sauers v. Salt Lake County, 1 F.3d 1122, 1128 (10th Cir.
1993)). She identifies the protected activity as complaining to the company’s
personnel director about sexual harassment and the adverse employment action as
a meeting with management in which she was allegedly reprimanded for her
inability to work with her supervisor, Defendant Rick Black. Her claim fails in
part because she is not able to demonstrate a causal connection between the
protected activity and the adverse employment action: the meeting with
management occurred several months after her complaint about the sexual
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harassment. Her claim also fails because, notwithstanding this circuit’s liberal
definition of “adverse employment action,” see Jeffries, 147 F.3d at 1231-32, the
meeting itself does not constitute such action. See Burlington Indus., Inc. v.
Ellerth, 118 S. Ct. 2257, 2268 (1998) (“A tangible employment action constitutes
a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits.”); Burnett v. Western Resources, Inc.,
929 F. Supp. 1349, 1362 (D. Kan. 1996) (“One isolated instance of an
unwarranted reprimand does not rise to the level of a cognizable retaliation
claim.”).
B.
Plaintiffs Jaime Gorostieta and Esteban Rivera contend that the district
court erred in granting summary judgment on their claims of national origin and
disability discrimination.
The district court properly granted summary judgment on their national
origin claims because, in their depositions, both Mr. Gorostieta and Mr. Rivera
disclaimed any adverse employment action as a result of their national origin.
Both expressly claimed that they were discriminated against only because of their
work-related injuries. “[I]f a civil rights plaintiff concedes . . . that the sole
reason for the discharge was a motive prohibited by a law entirely different from
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the one under summary judgment scrutiny, such a concession mandates grant of
summary judgment as to the latter claim.” Marx v. Schnuck Markets, Inc., 76
F.3d 324, 328 (10th Cir. 1996).
We turn to the disability discrimination claims of Messrs. Gorostieta and
Rivera. To state a claim under the ADA, “a plaintiff must demonstrate: (1) that
she is a disabled person within the meaning of the ADA, (2) that she is qualified,
that is, she is able to perform the essential functions of the job, with or without
reasonable accommodation, and (3) that the employer terminated her employment
under circumstances which give rise to an inference that the termination was
based on her disability.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.
1997) (citations omitted). If a plaintiff fails to prove any element of his prima
facie case, summary judgment is proper.
Messrs. Gorostieta and Rivera argue that they qualify as “disabled” persons
because they were “regarded as” such under the ADA. See 42 U.S.C. §
12102(2)(C). However, we need not determine whether they meet the statutory
definition of “disabled,” because both are nonetheless unable to satisfy the other
elements of a prima facie case of discrimination. Mr. Gorostieta has failed to
show that he is “qualified” under the ADA. He was initially terminated for poor
performance, after receiving numerous warnings both before and after the onset
of pain in his hands over a two-and-one-half year period. However, after his
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brother-in-law interceded for him, the company agreed to reinstate him. When he
reported to work, he presented a note from his doctor indicating that he needed
surgery and, as a result, was told by both his supervisor and the personnel director
that he could not have the job.
Mr. Gorostieta cites our decision in Hudson v. MCI Telecommunications
Corp., 87 F.3d 1167 (10th Cir. 1996) for the proposition that “a reasonable
allowance of time for medical care and treatment may, in appropriate
circumstances, constitute a reasonable accommodation.” Id. at 1169. However,
he fails to note that in Hudson we upheld summary judgment against the plaintiff
because she had “failed to present any evidence of the expected duration of her
impairment as of the date of her termination.” Id. We went on to state that an
employer is “not required to wait indefinitely for [the employee’s] recovery.” Id.;
see also Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995) (“[R]easonable
accommodation is . . . that which presently, or in the immediate future, enables
the employee to perform the essential functions of the job in question.”).
Although Mr. Gorostieta stated in his deposition that his doctor told him
that his recovery would take one to two months, he did not communicate this
information to the company, and the evidence is otherwise inadmissible as
hearsay. “It is well settled in this circuit that we can consider only admissible
evidence in reviewing an order granting summary judgment.” Gross v. Burggraf
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Constr. Co., 53 F.3d 1531, 1541 (10th Cir. 1995).
Mr. Rivera is unable to establish the third element of an ADA claim – that
is, an inference that the employer terminated his employment based on his
disability. The employer claims that Mr. Rivera was discharged because he had
committed a serious safety violation. The injury to his thumb which allegedly led
the employer to regard him as disabled occurred nine months prior to the
termination of his employment. Although his supervisors knew of his injury, he
requested no accommodation and indeed was rated as “outstanding” in the quality
and quantity of his work. Although Mr. Rivera denies committing a safety
violation, he concedes (and there is ample evidence) that the employer believed
that he had broken the rules. Thus, even if Mr. Rivera were to establish a prima
facie case, he is not able to show that the employer’s proffered reason for firing
him was a pretext for discrimination based on his “disability.” See McCoy v.
WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992) (Pretext
“addresses the issue of whether the employer honestly believes in the reasons it
offers.”).
C.
All of the plaintiffs brought claims of intentional infliction of emotional
distress against the defendants. Seven of the plaintiffs brought additional tort
claims. The district court dismissed each of these claims under Fed. R. Civ. P.
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12(b)(6), holding that Utah’s Workers’ Compensation law provides the exclusive
remedy for the plaintiffs’ injuries. We review de novo. See Ordinance 59 Assoc.
v. United States Dep’t of the Interior Secretary, 163 F.3d 1150, 1152 (10th Cir.
1998). Having read the briefs and the record, we agree with the district court that
the plaintiffs have failed to show either that the injuries arose outside of the
context of employment or that the employer actually and deliberately intended to
injure them. It is not enough to show “[i]ntentional actions, coupled with
knowledge that the injurious result was substantially certain to occur.” Hirase-
Doi v. U.S. West Communications, Inc., 61 F.3d 777, 786 (10th Cir. 1995) (citing
Lantz v. National Semiconductor Corp., 775 P.2d 937, 939-40 (Utah Ct. App.
1989)).
D.
Five of the plaintiffs brought common law wrongful discharge claims. The
district court dismissed these claims, finding that they were either preempted by
Utah’s Occupational Safety and Health Act (“UOSHA”), Utah Code Ann. § 34A-
6-203 (1997), or failed to state a claim. We agree.
An at-will employee can state a claim for wrongful termination, if, inter
alia, “the termination of employment constitutes a violation of a clear and
substantial public policy.” Fox v. MCI Communications Corp., 931 P.2d 857, 859
(Utah 1997). This is a limited remedy. See id. at 861 (“[I]f an employee reports
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a criminal violation to an employer, rather than to public authorities, and is fired
for making such reports, that does not, in our view, contravene a clear and
substantial public policy” because the disclosure “serves the private interest of the
employer, not the public interest.”); see also Peterson v. Browning, 832 P.2d
1280, 1282 (Utah 1992). In addition, any “public policy” actions which are based
on a statutory cause of action are preempted. See Retherford v. AT&T
Communications, 844 P.2d 949, 962-66 (Utah 1992).
Thus, to the extent that plaintiffs’ wrongful termination claims are based
upon UOSHA or the Utah Anti-Discrimination Act, Utah Code Ann. § 34A-5-
107(15) (1997), they are preempted by those statutes. To the extent that the
claims are based upon retaliation for internal company complaints (not
communicated to public authorities), they do not implicate a clear and substantial
public policy. To the extent that the claims are based upon retaliation for use of
medical benefits, they are preempted by Section 510 of the Employee Retirement
Income Security Act (“ERISA”), 29 U.S.C. § 1140. See Ingersoll-Rand Co. v.
McClendon, 498 U.S. 133, 144 (1990) (“Congress intended § 502(a) to be the
exclusive remedy for rights guaranteed under ERISA, including those provided by
§ 510.”). We note that plaintiffs did not allege federal claims under ERISA, and
thus the state law claims were properly dismissed.
Plaintiff Ofa Fiefia argues that she was wrongfully terminated based upon
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the false criminal accusation that she started a fight. The case Ms. Fiefia relies
upon, Hodges v. Gibson Prod. Co., 811 P.2d 151 (Utah 1991), is distinguishable
in that, unlike the plaintiff in Hodges, Ms. Fiefia’s alleged conduct was not
reported to public authorities. In view of Utah’s narrow construction of public
policies upon which a wrongful termination claim may be based, see Peterson,
832 P.2d at 1282, we cannot see a clear and substantial public policy violated by
the company’s alleged false accusation against Ms. Fiefia in order to justify firing
her.
E.
Plaintiffs argue that the district court erred in dismissing claims against
defendants Rick Black and Ted Miller and in dismissing their class action. We
affirm both for substantially the reasons provided by the district court. See
District Court Order of August 23, 1995. In addition, we note that any error
would be mooted by our disposition of the substantive issues above.
F.
Plaintiff Antonio Rueda argues that the district court erred in denying his
motion to intervene. We review a denial of permissive intervention for abuse of
discretion. See City of Stilwell v. Ozarks Rural Elec. Coop. Corp., 79 F.3d 1038,
1042 (10th Cir. 1996). We find no such abuse here, as the settlement agreement
relied upon by Mr. Rueda does not give him the right to sue on behalf of third
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parties, and Mr. Rueda does not assert any injury personally from the alleged
breach of the agreement.
G.
Plaintiff Patricia Johnson contends that the district court erred in
dismissing her state law breach of contract claim. However, since supplemental
jurisdiction is a doctrine of discretion, see United Mine Workers v. Gibbs, 383
U.S. 715, 726 (1966), a district court may decline to exercise jurisdiction over a
state law claim. See Thatcher Enter. v. Cache County Corp., 902 F.2d 1472, 1478
(10th Cir. 1990). Because all of Ms. Johnson’s other claims were dismissed, the
district court acted within its discretion in dismissing her remaining state law
claim without prejudice.
Finally, Ms. Johnson argues that the magistrate judge abused his discretion
in granting a protective order for a confidential document that was inadvertently
delivered by the defendants to the plaintiff during discovery. We review for
abuse of discretion, see Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 853 (10th Cir.
1996), and affirm for substantially the reasons given by the magistrate judge in
his order. See District Court Order of December 31, 1996.
AFFIRMED.
Entered for the Court
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Paul J. Kelly, Jr.
Circuit Judge
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