Steele v. Kroenke Sports Enterprises, L.L.C.

FILED
United States Court of Appeals
Tenth Circuit
February 11, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
DEBORAH STEELE,
Plaintiff-Appellant,
v. No. 06-1377
(D.C. No. 05-cv-00456-PSF-MJW)
KROENKE SPORTS ENTERPRISES, (D. Colo.)
L.L.C.,
Defendant-Appellee.
PAUL ANDREWS, in his individual
and official capacities; DOUG
ACKERMAN, in his individual and
official capacities,
Defendants.
ORDER AND JUDGMENT *
Before HOLMES, HOLLOWAY, and SEYMOUR, Circuit Judges.
*
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Deborah Steele appeals from the district court’s order granting summary
judgment for defendant on her claims for sex discrimination in violation of Title
VII of the Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17; age discrimination
in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34(ADEA); retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a); and
retaliation in violation of the ADEA, 29 U.S.C. § 623(d). We exercise
jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.
FACTS
1. Background
In August 1999, Ms. Steele began work as a sales representative for Ascent
Entertainment, which operated the Pepsi Center arena in Denver, Colorado. She
was responsible for non-sports group and VIP ticket sales. In this position, she
reported to Paul Andrews, Vice President of Ticket Sales and Operations for
Ascent. After Kroenke Sports Enterprises (Kroenke Sports) acquired the
Pepsi Center in 2000, it employed Ms. Steele. Paul Andrews continued to
supervise her.
By December 2001, Ms. Steele had been promoted to Director of VIP sales.
Her duties included selling memberships to the All Access Club, a membership
club that allows its members to obtain concert tickets directly from the Pepsi
Center in advance of the general public. She also sold concert tickets to All
Access Club members. In this position, Ms. Steele reported primarily to Doug
-2-
Ackerman, the Vice President of Arena Finance, and indirectly to Mr. Andrews.
Messrs. Andrews and Ackerman in turn reported to David Ehrlich, Kroenke
Sports’s Executive Vice President.
Until the end of September 2003, things went well for Ms. Steele as an
employee of Kroenke Sports. She received excellent performance reviews for
2000 through 2003. On September 14, 2003, she received a salary increase to
$50,000 plus commissions and a $500 bonus.
2. The ULP Position
The parties agree that prior to the events of September 2003, Ms. Steele
received assistance with her duties from Kate Becker. 1 At some point prior to the
end of September 2003, Ms. Becker expressed her intention to look for another
job because she wanted to go into sales or management. Mr. Ackerman did not
want to lose her as an employee. A possible solution to this dilemma surfaced
when a position selling corporate sponsorships at the Universal Lending Pavilion
(ULP) became available.
1
Ms. Steele asserts that she “supervised” Ms. Becker, who she describes as
her assistant, and three sales representatives. Aplt. Opening Br. at 4. This
testimony is significant because she claims she later lost “her” assistant. In his
deposition testimony, however, Mr. Ackerman described Ms. Becker as his
administrative assistant and stated that Ms. Steele had no supervisory
responsibility over her. In her deposition testimony, Ms. Steele agreed that it was
“really Mr. Ackerman” who supervised Ms. Becker. Aplt. App., Vol. I, at 146
(depo. p. 133). While the three sales people “reported” to Ms. Steele, she
admitted that she did not evaluate them or do performance appraisals for them.
-3-
ULP was a fifty-fifty partnership between Kroenke Sports and Clear
Channel. Mr. Ehrlich of Kroenke Sports and Chuck Morris of Clear Channel had
joint decision-making power over the corporate sponsorship position.
Mr. Ackerman and Mr. Ehrlich believed that Ms. Steele would be ideal for this
job, because she had previously done sponsorship and box seat sales at Fiddler’s
Green amphitheater. If she took the ULP job, Ms. Steele would continue to sell
All Access Club tickets, as well as corporate sponsorships. Her change in job
duties would also permit Ms. Becker to move up to a position engaging in All
Access Club sales.
On September 29, 2003, Ms. Steele met with Mr. Ackerman, Ms. Becker,
and Dick Brockmeier, Senior Director of Arena Finance, in Mr. Ackerman’s
office. Mr. Ackerman and Mr. Brockmeier told Ms. Steele they wanted her to
take the job at ULP. Ms. Steele was hesitant to consider the position. She
thought corporate sponsorships at ULP would be a “tough sale” because of the
acts being booked. Aplt. App., Vol. II, at 485. 2 She also did not know how well
she would work with Tom Philand, Kroenke Sports’s Vice President of
Sponsorship Sales.
2
She explained that one year the ULP would present concerts featuring
mainstream groups like Journey, Styx, and Barry Manilow that appealed to an
older, corporate clientele and the next, they would present “bands [the box
holders] had never heard of.” Aplt. App., Vol. II, at 488.
-4-
In a subsequent meeting, Mr. Ehrlich and Mr. Ackerman told Ms. Steele
they wanted her to take the position. Mr. Ackerman testified that by the end of
the meeting, from the Kroenke Sports perspective, Ms. Steele had been offered the
job. Ms. Steele agreed to take the job and she thought the decision had been
made to hire her. No salary or commission arrangements had been agreed upon,
however, and the parties did not discuss terms of employment. 3 Moreover, due to
the ULP partnership arrangement, before Ms. Steele could have the job, Kroenke
Sports would need consent from Clear Channel. 4
Mr. Ehrlich subsequently met for lunch with three Clear Channel
employees. The Clear Channel employees informed Mr. Ehrlich that they did not
want Ms. Steele to be responsible for sponsorship sales because they felt she did
not have “the appropriate working relationship to take on that role, given her
prior poor communication with them.” Id., Vol. I, at 282 (depo. p. 39).
3
In her reply brief, Ms. Steele asserts that she and Messrs. Ehrlich and
Ackerman discussed “who her new supervisor would be, what Steele’s duties and
responsibilities would be and the type of sales that Steele would be doing.” Aplt.
Reply Br. at 1-2. These discussions had nothing to do with compensation, the key
question here. Any factual dispute created by them is not material to the outcome
of this case.
4
Ms. Steele asserts that “no mention was made of a need for Clear Channel’s
approval” at the meeting. Aplt. Reply Br. at 1. She cites to her deposition
testimony, in which she stated that she assumed that Mr. Ehrlich and
Mr. Ackerman were the sole decision-makers. Aplt. App., Vol. II, at 491.
Her mistaken assumption obviously does not create a genuine factual dispute
concerning the reality of the need for Clear Channel’s approval, which is
uncontroverted in the evidence.
-5-
Mr. Ehrlich did not challenge Clear Channel’s veto of Ms. Steele. He later
explained that he did not fight for Ms. Steele as a candidate because Kroenke
Sports and Clear Channel had a fifty-fifty partnership and he felt that it was
reasonable to give in to Clear Channel on this point.
According to Ms. Steele, Mr. Ackerman told her later that day that “it was
said at lunch that [she] was not young and hip enough for the job.” Id. at 142(depo. p. 113). She does not know who made the statement at the luncheon. 5
Derek Carosi, a younger male candidate with less experience than Ms. Steele, was
subsequently hired into the ULP sponsorship sales position.
3. Restructuring of Ms. Steele’s Compensation
A few days later, on October 1, 2003, Mr. Ackerman notified Ms. Steele
that he would be restructuring her compensation package due to declining sales of
All Access Club memberships. On October 14, Mr. Ackerman and Mr. Andrews
met with Ms. Steele concerning her compensation and revenue. Mr. Andrews had
long felt that Ms. Steele’s base salary was too high and that it should be reduced
to give her more of an incentive to earn commissions through sales.
5
Ms. Steele asserts that the statement was made by a Clear Channel
representative, but does not know which of the three representatives present at the
meeting actually made the statement.
-6-
Mr. Ackerman was also concerned about adjusting her compensation due to the
declining sales of All Access Club memberships. 6
Ms. Steele’s base salary was reduced by forty percent, from $50,000 to
$30,000. It was now lower than Ms. Becker’s $31,000 base salary. Moreover,
Ms. Becker was permitted to compete with Ms. Steele by selling All Access Club
memberships. Ticket sales to the existing members of the All Access Club,
however, were reserved to Ms. Steele, effectively giving her an income stream
unavailable to Ms. Becker.
Mr. Andrews told Ms. Steele that she could and should make up the
difference between her old and new salary by increasing her commission sales.
Toward this end, he stated he was increasing her commission percentages. 7
6
In her affidavit, Ms. Steele stated, without providing specific figures, that
“[d]uring the fall of 2003, the All Access Club sales were at least on par with the
previous year if not exceeding them.” Aplt. App., Vol. II, at 469. Mr. Ackerman,
however, appears to have been concerned with a longer-term trend, for he stated
in his deposition that “[i]n ‘01, membership was bringing in 123,000. In ‘03, it
only brought in 102.” Id., Vol. I, at 217 (depo. p. 71). Ms. Steele fails to raise a
genuine issue of material fact concerning Mr. Ackerman’s perception that All
Access Club membership sales were declining.
7
Ms. Steele asserted at her deposition that her commission structure was
actually reduced. But she presented no figures to support her statement. Aplt.
App., Vol. II, at 499. During Mr. Ackerman’s deposition, he presented detailed
percentage figures showing how the commissions on specific sales items were
increased or decreased. Id., Vol. I, at 224-25 (depo. pp. 105-07).
-7-
4. Ms. Steele’s FMLA Leave and Alleged Retaliation
Following the September 29, 2003, meeting concerning corporate
sponsorship sales for the ULP, Ms. Steele began experiencing anxiety symptoms
and panic attacks. She felt that Mr. Ackerman was unjustly criticizing her job
performance. Interacting with him intensified her anxiety and panic symptoms.
On October 20, 2003, she informed Human Resources (HR) that Mr. Ackerman’s
actions were causing her severe anxiety. She told them about the “young and hip”
comment and the lowering of her pay and complained that Mr. Ackerman was
“ignoring [her] completely, and . . . nitpicking every piece of paperwork [she]
did.” Id., Vol. II, at 503. She asserted that Mr. Ackerman was auditing her
commissions in a way he never had before. HR did not launch an investigation of
her claims.
Ms. Steele later presented an HR employee with a letter from her doctor
describing her symptoms and indicating that she needed time off from her job.
Kroenke Sports granted Ms. Steele FMLA leave, and she was permitted to be off
work for a week beginning October 27, 2003. Ms. Steele had asked that the
reason for her leave be kept confidential. HR told Mr. Ackerman that she was
absent on FMLA leave, but he did not know the reason for her absence.
During the week Ms. Steele was off, on October 30, 2003, she came to
work to assist with a VIP party for a Simon & Garfunkel concert. That day, she
was asked to meet with Mr. Ackerman and Mr. Brockmeier. Mr. Ackerman was
-8-
frustrated because he felt she had not stopped in to see him that morning, had not
communicated with him about what was “going on” with her FMLA leave and had
not informed him of the status of the VIP party, whether she was handling the
clients, whether voicemail was being answered, and whether business was
progressing. Id. at 588. According to Ms. Steele, he became very angry and
demanded to know what was wrong with her. He stated that her lack of
communication was a performance issue and threatened to “write [her] up” if she
would not tell him. Id. at 516.
Ms. Steele, who was emotionally upset at the meeting, finally told him
“my problem is with you. I have anxiety attacks, panic attacks, and every time
I see you, Doug, I want to throw up.” Id. Mr. Ackerman reacted by making
Mr. Brockmeier the intermediary between them. He also informed Ms. Steele that
if she needed help from Ms. Becker, she should inform him, rather than telling
Ms. Becker what to do as she had in the past.
Ms. Steele asserts that while she was on FMLA leave, Ms. Becker was
promoted to a sales position for the All Access Club. A meeting was held without
Ms. Steele present in which the All Access sales plan was discussed for the
following year. As a result of Ms. Becker’s promotion, she and Ms. Steele were
now “equal,” except for the protection granted to Ms. Steele’s existing sales
accounts. Id. at 625. Ms. Steele saw this as a demotion.
-9-
Ms. Steele further asserts that Mr. Ackerman took a number of retaliatory
actions against her, including (1) telling co-workers not to take breaks with her;
(2) increasing her paperwork; and (3) “essentially question[ing] everything [she]
did.” Aplt. Opening Br. at 10. Ms. Steele complains that her co-workers shunned
her and that she was unable to obtain the boilerplate contract she needed to sell
VIP boxes at the ULP. She also complains that Mr. Brockmeier was assigned to
check her commission sheets. He did not check commission sheets for
Ms. Becker, apparently because she did not yet have any commissions. Aplt.
App., Vol. II, at 630. Ms. Steele further asserts that her commission reports were
expanded from a single one-page product to a fifty-page product that took days to
complete.
5. Ms. Steele’s Termination
Ms. Steele continued to work for Kroenke Sports under what she
characterizes as “constant hostile working conditions” through February 2004.
Aplt. Opening Br. at 11. Sometime around February 25, 2004, Mr. Andrews
received a telephone call from an individual who stated that he worked for
Alliance Tickets (Alliance), a ticket broker. This informant told him that two
individuals were selling tickets to Alliance: a tall black individual named Robert
and another individual named Deb.
Mr. Andrews and Mr. Ackerman testified that Kroenke Sports had an
unwritten policy for its employees not to sell tickets to ticket brokers.
-10-
Mr. Andrews further stated that he explained this policy to Ms. Steele around the
time that he hired her. Ms. Steele denies that such a policy existed, but does not
deny that Mr. Andrews and Mr. Ackerman believed that it did.
Mr. Andrews met with the Alliance informant in person. The informant
provided private telephone numbers for Alliance. He later e-mailed Mr. Andrews
an Alliance fax number. Mr. Andrews and Mr. Ackerman then began an
investigation into possible contacts between Kroenke Sports employees and ticket
brokers.
At Mr. Ackerman’s instruction, an employee of Kroenke Sports’s
Information Technology Department conducted a search for telephone records
of all calls from company standard telephones to the phone numbers the informant
had supplied. 8 The search showed that three Kroenke Sports employees
had placed telephone calls to Alliance: Robert Kinnard (who is tall and
African-American), Jon Moore, and Ms. Steele. Ms. Steele’s fax machine had
also been used in communications with Alliance. The investigation further
disclosed that some of Ms. Steele’s clients with credit card numbers similar to
that provided by the informant had reserved tickets from the All Access Club.
8
Mr. Ackerman’s deposition testimony is notably ambiguous on this point.
While he testified at first that all employee phone numbers were investigated,
Aplt. App., Vol. I, at 226 (depo. p. 114), he later stated that they may have only
checked numbers belonging to the three [sic] employees identified by the tipster,
see id. at 230 (depo. pp. 127-28). Mr. Andrews, however, testified that the phone
investigation was run “companywide.” Id. at 190 (depo. p. 89).
-11-
As a result of the investigation, Mr. Kinnard admitted he had sold tickets to
ticket brokers. He was permitted to resign his employment and received a
settlement package in connection with the resignation. Mr. Moore explained that
he had not sold tickets to ticket brokers and that his calls to Alliance were to
purchase tickets for a current corporate client. He was not discharged, but was
given a warning. 9
On March 11, 2004, Mr. Andrews and an HR employee met with
Ms. Steele. Ms. Steele confirmed that she had been selling tickets and
memberships for the All Access Club to Alliance brokers. She had sold the
tickets to the brokers under their individual names. All her sales were routinely
reviewed by management. She contended that these sales were permissible
because the owners of Alliance were season ticket holders for sports teams and
members of the All Access Club. Mr. Andrews told Ms. Steele that she was
suspended, pending further investigation and discussions with other Kroenke
Sports executives. The following week, she was discharged for dealing with
ticket brokers. After her termination, an e-mail was circulated to all employees
stating that any employee caught dealing with ticket brokers would be terminated.
9
Citing to Mr. Andrews’ deposition, Ms. Steele contends that “Mr. Moore
was not discharged, disciplined or suspended” as a result of his involvement with
ticket brokers. Aplt. Opening Br. at 12. Actually, Mr. Andrews stated that he
did not know whether Mr. Moore was disciplined. Aplt. App., Vol. I, at 193
(depo. p. 96). Notes from a contemporaneous Arena Executive Meeting indicate,
however, that “Moore was warned.” Id. at 286 (depo. p. 112).
-12-
6. Course of Proceedings
After her termination, Ms. Steele filed this action against Kroenke Sports,
Mr. Andrews and Mr. Ackerman. She asserted claims for Title VII
discrimination, Title VII retaliation, ADEA discrimination, ADEA retaliation,
FMLA discrimination, FMLA retaliation, and defamation. The district court
subsequently granted summary judgment to defendants on all claims except for
her Title VII and ADEA discrimination claims relating to her reduction in
compensation and termination. These claims were presented to a jury, which
found for defendants. Ms. Steele does not appeal from the jury verdict. She
appeals the grant of summary judgment only as to her Title VII and ADEA
discrimination claims relating to denial of the ULP position, and her Title VII and
ADEA retaliation claims pertaining to the alleged harassment and termination.
ANALYSIS
1. Standard of Review
“We review de novo the district court’s summary judgment decision,
applying the same standard as the district court.” Butler v. Compton, 482 F.3d
1277, 1278 (10th Cir. 2007). 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). We examine the record and all reasonable inferences that
-13-
might be drawn from it in the light most favorable to the non-moving party.
Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1181 (10th Cir. 2006). Finally,
we may affirm on any basis supported by the record, even though not relied on by
the district court. Felix v. Lucent Techs., Inc., 387 F.3d 1146, 1163 n.17
(10th Cir. 2004).
2. Denial of ULP Position
Ms. Steele contends that Kroenke Sports discriminated against her on the
basis of her age and sex by denying her the ULP position. 10 To establish a prima
facie case based on a discriminatory adverse employment action, Ms. Steele must
show that (1) she belongs to a protected group; (2) her job performance was
satisfactory; (3) adverse employment action was taken against her; and (4) the
action was taken under circumstances that give rise to an inference of
discrimination. Sorbo v. United Parcel Serv., 432 F.3d 1169, 1173-74 (10th Cir.
2005). Only the third element is at issue here. Kroenke Sports concedes that she
has established the remaining elements of the analysis. Aplee. Br. at 19.
10
The parties do not treat her argument about the denial of the position as a
failure-to-promote or failure-to-hire claim. Instead, along with the district court,
they consider the failure to hire Ms. Steele for the ULP job as a discriminatory
adverse employment action, akin to being disciplined or denied a benefit by her
employer on the basis of her age or sex. Were we to view Ms. Steele’s claim as
one for failure to promote, her prima facie case would require her to show that
(1) she was a member of a protected class; (2) she applied for and was qualified
for the position; (3) despite being qualified, she was rejected; and (4) after she
was rejected, the position was filled or remained open. Jaramillo v. Colo.
Judicial Dep’t, 427 F.3d 1303, 1306-07 (10th Cir. 2005).
-14-
The district court found that she failed to meet this third element because the
denial of the ULP position was not a materially adverse employment action.
At the outset, we are faced with a disagreement among the parties as to the
extent of the “adverse employment action.” Kroenke Sports argues that the
alleged action consisted simply of denying Ms. Steele the position with ULP.
Ms. Steele takes a broader view: that Kroenke Sports “ordered her to take [the]
new position [with ULP] and promoted a younger worker [Ms. Becker] into a
position to take over many of [Ms.] Steele’s prior duties and sales pool. Shortly
thereafter, Kroenke Sports revoked its own decision and thereby placed
[Ms.] Steele in the undisputed position of earning less money with a decreased
sales base.” Aplt. Reply Br. at 7. Kroenke Sports contends that Ms. Steele has
waived this argument, because her argument to the district court focused solely on
the denial of the position with ULP. 11 Ms. Steele responds that she “presented all
of the facts necessary to support the argument and specifically referred to the
argument” in the district court. Id. The fact remains, however, that she did not
actually make the expanded argument to the district court, and therefore gave the
district court no opportunity to consider it. See Steele’s Summary Judgment
Resp. Br., Aplt. App., Vol. II, at 427-30. Accordingly, we will limit our
11
This argument differs from Ms. Steele’s “reduced compensation”
discrimination argument, based on the reduction of her base salary from $50,000
to $30,000. The district court permitted Ms. Steele to present this claim to a jury.
The jury found in favor of Kroenke Sports.
-15-
consideration to whether Ms. Steele has demonstrated that the denial of the
position with ULP constituted discrimination within the meaning of Title VII or
the ADEA.
The substantive anti-discrimination provisions of Title VII are limited “to
[adverse] actions that affect employment or alter the conditions of the
workplace.” Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2412
(2006). We examine claims of adverse action on the basis of race or sex on a
case-by-case basis, “examining the unique factors relevant to the situation at
hand.” Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998).
In Sanchez, we held that a female teacher denied transfer to a position with the
same salary and benefits and substantially similar duties did not suffer an adverse
employment action because the desired position would have been “a purely lateral
transfer.” Id. We explained that “[i]f a transfer is truly lateral and involves no
significant changes in an employee’s conditions of employment, the fact that the
employee views the transfer either positively or negatively does not of itself
render the denial or receipt of the transfer [an] adverse employment action.”
Id. at 532 n.6.
Ms. Steele contends that denial of the ULP position was adverse to her
because the position would have given her the opportunity to earn increased
commissions. In her affidavit submitted in opposition to summary judgment,
she stated, “I viewed the ULP position as taking on additional responsibilities and
-16-
the potential to make more money” and “I further understood there would be no
change in my base pay but that the opportunity would allow for an increased
commission potential.” Aplt. App., Vol. II, at 469-70.
These statements contradict her earlier deposition testimony. At her
deposition, Ms. Steele stated that she and Mr. Ehrlich did not discuss the salary,
the commission arrangement, or the terms of employment for the ULP position.
Id., Vol. I, at 143 (depo. p. 117). She was reluctant to take the position because
she thought the corporate sponsorships would be a “tough sale.” Id. at 141(depo. p. 106).
A contrary affidavit will be disregarded when a court determines that it
represents an attempt to create a sham fact issue. Franks v. Nimmo, 796 F.2d
1230, 1237 (10th Cir. 1986). “Factors relevant to the existence of a sham fact
issue include whether the affiant was cross-examined during his earlier testimony,
whether the affiant had access to the pertinent evidence at the time of his earlier
testimony or whether the affidavit was based on newly discovered evidence, and
whether the earlier testimony reflects confusion which the affidavit attempts to
explain.” Id. There is no reason to believe that Ms. Steele did not know of her
“increased commission potential” at the time of her deposition. We discern no
confusion that needed to be clarified concerning her earlier testimony. We must
therefore disregard the statements in her affidavit that contradicted her earlier
deposition testimony.
-17-
Ms. Steele’s statements at her deposition were also consistent with
Mr. Ackerman’s deposition testimony. He testified that Ms. Steele could
“generate significant revenue” in the ULP position, and she was “ready to try it,”
id., Vol. I, at 221 (depo. p. 85), but he did not indicate that he told her the job
would be more lucrative than her existing employment. Other than Ms. Steele’s
affidavit, which impermissibly contradicts her deposition testimony, we have
found no evidence in the summary judgment record to substantiate her claim that
the ULP position would have been more lucrative than her existing position.
She fails to assert any other basis for concluding that her failure to obtain the
ULP position represented an adverse employment action.
3. Direct Evidence of Discrimination
Ms. Steele further argues that she has presented direct evidence of age
discrimination, in the form of the comment by an unnamed Clear Channel
employee that she was not young and hip enough for the ULP job. “Direct
evidence is evidence, which if believed, proves the existence of a fact in issue
without inference or presumption.” Hall v. United States Dep’t of Labor,
476 F.3d 847, 854 (10th Cir.) (quotation omitted), cert. denied, 128 S. Ct. 489(2007). It includes “oral or written statements on the part of a defendant showing
a discriminatory motivation.” Id. at 855 (quotation omitted).
-18-
Assuming that the loss of a position that she was reluctant to accept and
that she has failed to show would be more remunerative than her existing job
constituted “discrimination,” Ms. Steele’s direct evidence claim still fails because
there is insufficient evidence to attribute the comment by an unnamed Clear
Channel employee to Kroenke Sports. Kroenke Sports cannot be held directly
liable for the comment, which was not made by its personnel. The evidence
shows, in fact, that the Kroenke Sports employees present at the meeting with
Clear Channel advocated for Ms. Steele’s hiring. There is no evidence that they
were capable of unilaterally overriding Clear Channel’s veto of Ms. Steele. See
Sandoval v. City of Boulder, 388 F.3d 1312, 1321-22 (10th Cir. 2004) (rejecting
Title VII liability for city police department, notwithstanding discriminatory
comments made during interview by non-city personnel on committee that refused
to hire plaintiff, where city advocated for plaintiff and was unable to control
hiring decision made by committee). 12
4. Retaliation Claims
To establish a prima facie case of retaliation under Title VII or the ADEA,
Ms. Steele had to show that “(1) she engaged in protected opposition to
discrimination; (2) she suffered an adverse action that a reasonable employee
12
Sandoval further indicates that an employer may be held vicariously liable
for comments made by a decision-maker where the two employers constitute
either a “single employer” or a “joint employer.” Sandoval, 388 F.3d at 1322-24.
Ms. Steele does not provide such a vicarious liability analysis, however.
-19-
would have found material; and (3) a causal nexus exists between her opposition
and the employer’s adverse action.” Montes v. Vail Clinic, Inc., 497 F.3d 1160,
1176 (10th Cir. 2007); Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1122-23
(10th Cir. 2007). The district court granted Kroenke Sports summary judgment
on Ms. Steele’s retaliation claim by applying elements one and three of the prima
facie analysis.
Ms. Steele asserted three separate instances of protected conduct. Applying
the first element of the prima facie analysis, the district court concluded that two
of Ms. Steele’s alleged protected activities–complaining to Mr. Ackerman about
the ULP position and complaining to him about her salary reduction–could not
form the basis of a retaliation claim because she did not allege that she ever
mentioned sex or age discrimination. With regard to her third alleged protected
activity–her complaint to HR on October 20, 2003, regarding the “young and hip”
comment–the district court found the third element of causal nexus absent,
reasoning that the only adverse action after her complaint to HR was her
termination in March 2004, and these two events were not sufficiently close in
time to establish the requisite causal nexus.
Ms. Steele first contends that the district court ignored an additional
example of her protected opposition to discrimination. She says she complained
to Mr. Ackerman after he informed her that she was not considered “young and
hip enough” for the position that the decision was unfair and that she expressed
-20-
her disagreement about Mr. Carosi obtaining the position. The district court did
not ignore this evidence, however. It specifically found that the alleged
complaint to Mr. Ackerman did not constitute protected activity, because
Ms. Steele did not mention sex or age discrimination and only complained that
the action was “unfair.” See Aplt. App., Vol. III, at 888; see also Aplt. App.,
Vol. II, at 470 (Ms. Steele’s affidavit); Petersen v. Utah Dep’t of Corrs., 301 F.3d
1182, 1188 (10th Cir. 2002) (concluding that the absence of a reference to
unlawful discrimination precludes a retaliation claim because an employer cannot
engage in unlawful retaliation if it does not know that the employee at least in
part is engaging in protected opposition). We agree with the district court’s
analysis.
Ms. Steele further asserts that she presented evidence of a pattern of
retaliatory conduct that began after her protected comments to Mr. Ackerman and
continued thereafter with a variety of increasingly adverse actions, culminating in
her termination. We have recognized that a pattern of adverse personnel actions
over a period of weeks or months may demonstrate an employer’s retaliatory
animus notwithstanding the absence of close temporal proximity between the
employee’s initial protected activity and the employer’s ultimate decision to
terminate the employee. See, e.g., Marx v. Schnuck Markets, Inc., 76 F.3d 324,
329 (10th Cir. 1996). This case, however, is not such a “pattern of retaliatory
conduct” case. First, as we have seen, she fails to show that the pivot on which
-21-
she wishes to anchor her claim of retaliatory pattern, her alleged complaints to
Mr. Ackerman, actually constituted protected activity.
Moreover, most of the significantly adverse actions of which she complains
occurred before her first proven protected action: her October 20, 2003, complaint
to HR about the “young and hip” comment. Prior to that date, her compensation
had already been reduced and her status adjusted with regard to Ms. Becker.
Mr. Ackerman’s alleged nitpicking of her work and ignoring her also began prior
to her complaint to HR. See Aplt. App., Vol. I, at 148-49 (depo. pp. 145-47).
Most of the actions taken between the time Ms. Steele complained to HR
and her termination were not, even taken in the aggregate, “materially adverse to
a reasonable employee.” Burlington N., 126 S. Ct. at 2409. To qualify as
retaliatory, actions “must be harmful to the point that they could well dissuade a
reasonable worker from making or supporting a charge of discrimination.” Id.Ms. Steele complains that Mr. Ackerman snubbed her and used Mr. Brockmeier as
an intermediary after she told him that he made her sick. This sort of personality
conflict did not constitute a materially adverse action. See id. at 2415. Nor was
his alleged instruction to her co-employee not to join her on smoking breaks more
than a “nonactionable petty slight.” Id. While Kroenke Sports held a planning
meeting during Ms. Steele’s FMLA leave, which she was unable to attend, other
meetings continued after she returned to work and she did attend those. Finally,
although Mr. Ackerman gave Ms. Steele a verbal warning because she did not
-22-
communicate with him about her FMLA leave, there is no evidence of any further
discipline or other adverse impact as a result of this incident.
As to other incidents that could be viewed as materially adverse, Kroenke
Sports provided an unrebutted, non-retaliatory explanation. Ms. Steele complains
that she could not obtain the revised box sales contract for the ULP she needed to
make certain sales. But the evidence shows that the contract was under revision.
There is no evidence that other employees had access to the revised contract or
used it during the time that it was unavailable to Ms. Steele.
Ms. Steele complains of new audits of her commissions. The evidence
shows these were part of the alteration of her commission structure. The
commission structure alteration occurred before her HR complaint. Moreover,
Ms. Becker was subject to being audited as well as Ms. Steele.
Ms. Steele complains that beginning in November 2003, she had to
complete reports that listed each individual ticket order for the month, rather than
being permitted to attach photocopies of the ticket orders behind a single-page
summary sheet as she had in the past. Again, this additional paperwork appears
to have been required in connection with documentation required under the new
commission structure.
In sum, we conclude that Ms. Steele has failed to demonstrate that most of
the incidents of which she complains could be considered materially adverse for
purposes of our retaliation analysis. Kroenke Sports has provided unrebutted
-23-
non-retaliatory explanations for the remaining incidents. Finally, we agree with
the district court that Ms. Steele failed to establish the requisite causal nexus
between her HR complaint and her termination, which occurred over five months
after the complaint.
The judgment of the district court is AFFIRMED.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
-24-