McCrary v. Aurora Public Schools

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 29 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

KAREN M. MCCRARY,

Plaintiff - Appellant,

v.

AURORA PUBLIC SCHOOLS, a
governmental entity; JULIE A.
MORRIS, principal of Jewell
Elementary School in the Aurora No. 02-1098
Public Schools, in her official and D.C. No. 00-D-52
individual capacity; HAROLD (D. Colorado)
BEEBE, in his official capacity as
Assistant Superintendent in the
Division of Effective School and
Southeast Quadrant Director for
Aurora Public Schools; ROBERT
ADAMS, in his official capacity as
Assistant Superintendent of Human
Resources for Aurora Public Schools;
KAREN YABLONSKI-TOLL, in her
official capacity as Director of
Employee Relations for Aurora Public
Schools,

Defendants - Appellees.

ORDER AND JUDGMENT *

*
This order and judgment is not binding precedent, except under the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.
Before BRISCOE , Circuit Judge, BRORBY , Senior Circuit Judge, and HARTZ ,
Circuit Judge.

Plaintiff Karen McCrary appeals the district court’s grant of summary

judgment to defendants on her claims of age discrimination, retaliation, and

harassment, disability discrimination and retaliation, equal protection and due

process violations, breach of contract, outrageous conduct, and constructive

discharge. 1
We exercise jurisdiction under 28 U.S.C. § 1291 and, finding no error

in the district court’s disposition of these claims, we affirm.

Background

At the time of the events at issue here, Ms. McCrary was an elementary

teacher at Jewell Elementary School in the Aurora Colorado Public School

District. Of concern are events that took place between 1996 and 1999. After

teaching fourth grade for many years, Ms. McCrary was assigned to a third-grade

classroom for the 1996-1997 school year. That school year was also defendant

Julie Morris’ first as principal at Jewell Elementary. Before the school year

began, plaintiff requested and was granted a leave of absence to care for her

1
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.

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ailing parents. She was able to return and resume her full teaching

responsibilities as of November 1, 1996.

Unfortunately, Ms. McCrary had her own health problems, which resulted

in her being absent sixteen times between November 1 and February 10. In her

deposition, Ms. McCrary testified that from the mid-1980s on, she had

progressively worsening symptoms that included difficulty getting up in the

morning, daytime sleepiness, difficulty staying alert and focused–especially in the

morning and early afternoon hours–and decreased energy. Her hands also got

progressively more stiff and swollen, as did her legs, and her breathing became

more labored. There is no evidence that Ms. McCrary informed any of the

defendants of her health issues until February 18, 1997. On that day Ms. Morris,

responding to parent complaints, informed plaintiff that she was placing her on

evaluation. Ms. McCrary then told Ms. Morris that she had recently undergone a

sleep study and had been diagnosed with obstructive sleep apnea. Around the

same time, Ms. McCrary began using oxygen during the day, which alleviated

some of her symptoms.

In May 1997, Ms. Morris gave Ms. McCrary a written performance

evaluation reflecting that she failed to meet school district standards in three of

five categories. Ms. McCrary submitted a written rebuttal to the evaluation

discussing the unique factors that contributed to her difficulties that year. In

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June, Ms. Morris developed a remediation plan, to be implemented the following

school year, that addressed the issues raised in plaintiff’s performance evaluation.

After she signed the remediation plan, Ms. McCrary wrote Ms. Morris saying she

suffered from two sleep disorders and requesting accommodation for her

impairments. Ms. Morris responded by granting those accommodations that were

not specifically contradicted by the remediation plan.

Throughout the following school year, Ms. McCrary, Ms. Morris and others

continued to discuss plaintiff’s performance and her requests for various

accommodations. In December 1997, Ms. McCrary received a performance

evaluation reflecting that she had met the goals of the remediation plan and now

met district standards in all but one category, in which she still needed growth.

Accordingly, she was switched from a remediation plan to a growth plan.

In January 1998, Ms. Morris issued plaintiff a letter of reprimand about her

handling of a discipline problem, to which Ms. McCrary submitted a letter of

rebuttal. In February, Ms. Morris began considering staffing needs for the next

school year. Among other things, she considered transferring Ms. McCrary to a

new position to be created, called a classroom support teacher (CST), because she

thought the position would accommodate most of plaintiff’s needs and plaintiff

would have the greatest chance of success in that position. Plaintiff, however,

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requested that she either be transferred to a vacant fourth-grade classroom

position or remain in her current position.

On February 21, Ms. McCrary filed a charge with the EEOC claiming age

and disability discrimination. The charge stated for the first time that, in addition

to her sleep disorders, plaintiff also suffered from learning disabilities, adult

attention deficit disorder (ADD), high blood pressure, and esophagus irritation.

Ms. McCrary then submitted another written request for accommodations to the

school district.

In early March, Ms. Morris discussed the new CST position with

Ms. McCrary and encouraged her to accept it. Ms. McCrary accepted the position

on March 15, but in May, her attorney told Ms. Morris that plaintiff intended to

seek disability retirement rather than fill the CST position.

On May 13, Ms. Morris gave plaintiff what would be her final written

performance evaluation. She determined that plaintiff met district standards in

four categories, but continued to need growth in the category of learning

environment. Ms. Morris discussed how she thought plaintiff’s transfer to the

CST position for the following school year would give her the opportunity to

improve the learning environment and to maximize her teaching strengths. On

May 20, plaintiff submitted a written rebuttal to this performance evaluation.

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 Shortly before the 1998-1999 school year began, Ms. Morris received

notice that plaintiff was taking a leave of absence until her disability retirement

application could be approved. Ms. Morris then transferred a fifth-grade

classroom teacher into the CST position. On October 27, 1998, Ms. McCrary

submitted her letter of resignation, stating that she had been forced to take

disability retirement due to her declining health, which she blamed on the school

district’s refusal to grant all the accommodations she requested.

Standard of Review

We review the district court’s grant of summary judgment de novo,

applying the same standards as did the district court under Fed. R. Civ. P. 56(c).

Perry v. Woodward , 199 F.3d 1126, 1131 (10th Cir. 1999). A grant of summary

judgment is appropriate if there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. Anderson v. Liberty

Lobby, Inc. , 477 U.S. 242, 247-48 (1986). “[I]n ruling on a motion for summary

judgment, the [court] must view the evidence presented through the prism of the

substantive evidentiary burden.” Id. at 254.

[W]here the nonmoving party will bear the burden of proof at trial on
a dispositive issue that party must go beyond the pleadings and
designate specific facts so as to make a showing sufficient to
establish the existence of an element essential to that party’s case in
order to survive summary judgment.

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McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998)

(quotations omitted). “[F]ailure of proof of an essential element renders all other

facts immaterial.” Koch v. Koch Indus., Inc. 203 F.3d 1202, 1212 (10th Cir.

2000).

Age-Based Claims

1. Discrimination Claim

We turn first to Ms. McCrary’s claim of age discrimination under the Age

Discrimination in Employment Act (ADEA). “It is well settled that an ADEA

plaintiff must establish that age was a determining factor in the employer’s

challenged decision.” Lucas v. Dover Corp. , 857 F.2d 1397, 1400 (10th Cir.

1988) (quotation omitted). “A party may attempt to meet his burden directly, by

presenting direct or circumstantial evidence that age was a determining factor” in

the challenged decision, or the party may meet his burden indirectly by relying on

the familiar burden-shifting scheme set forth in McDonnell Douglas Corp. v.

Green , 411 U.S. 792, 802-04 (1973). Lucas , 857 F.2d at 1400. Here, plaintiff

argued that she established her claim of age discrimination by both methods.

“Proof by direct evidence requires evidence that the actual motive behind

the [challenged employment action] was discriminatory animus. Evidence

demonstrating discriminatory animus in the decisional process needs to be

distinguished from stray remarks in the workplace, statements by

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nondecisionmakers, or statements by decisionmakers unrelated to the decisional

process.” Clearwater v. Indep. Sch. Dist. No. 166 , 231 F.3d 1122, 1126 (8th Cir.

2000) (quotation and citation omitted).

Ms. McCrary alleged that she was discriminated against based on the

following conduct: she was accused of professional incompetence; Ms. Morris

placed her on evaluation outside the normal evaluation cycle; Ms. Morris gave her

an adverse performance evaluation in May 1997 and placed her on a remediation

plan with work restrictions; Ms. Morris moved her from the remediation plan to a

growth plan with similar work restrictions; Ms. Morris placed a letter of

reprimand in her personnel file that was not removed until she resigned; Ms.

Morris denied her request to be transferred to a fourth-grade classroom teacher

position for the 1998-1999 school year; Ms. Morris instead transferred her to the

CST position for that school year; and the school district refused her request to

expand the scope of a grievance she filed in September 1998 and the school

district successfully challenged the grievance on timeliness grounds rather than

allowing it to be adjudicated on the merits.

Ms. McCrary contended that two comments made by Ms. Morris constituted

direct evidence that the foregoing conduct was motivated by discriminatory

animus based on plaintiff’s age. The first comment was made at a February 1998

meeting of a parent/staff committee at which Ms. McCrary, admittedly, was not

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present. Based on what she heard from others, she alleged that Ms. Morris

commented at the meeting that there were too many old, white, female teachers at

Jewell. Ms. Morris testified in her deposition that this mischaracterized what she

said. She testified that the committee was setting hiring priorities for the coming

school year and the question arose whether there was any need to keep the

affirmative action statement in the school’s policies on hiring. Ms. Morris

testified that she responded, “If you look around at the teaching staff in the

building, almost all of us are old white women like me.” Aptl. App., Vol. II at

334. The second comment Ms. Morris allegedly made was that the school had an

aging staff that had been together for awhile. Ms. McCrary did not provide any

specifics about when, where, or under what circumstances Ms. Morris allegedly

made this comment.

Even if Ms. Morris made the remarks, plaintiff presented no evidence that

either of the remarks was related to the decisional processes involved in any of

the actions that she challenged. While the first remark might have had some

relation to the staffing decisions Ms. Morris made for the 1998-1999 school year

in general, the evidence does not suggest that it had any relation to the decision to

transfer plaintiff to the CST position in particular. Moreover, as discussed below,

Ms. McCrary’s proposed transfer to that position was merely a lateral transfer; it

did not constitute an adverse employment action that could give rise to liability

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under the ADEA. Ms. McCrary, therefore, failed to establish her claim of age

discrimination by the direct method.

To establish her claim of age discrimination by the indirect method,

Ms. McCrary bore “the initial burden of setting forth a prima facie case of

discrimination.” Sanchez v. Denver Pub. Schools , 164 F.3d 527, 531 (10th Cir.

1998). This required plaintiff to show, among other things, that she suffered an

adverse employment action. Id. The district court concluded that Ms. McCrary

failed to establish this element of her prima facie case.

The court reasoned that the only challenged conduct that could possibly

qualify as an adverse employment action was plaintiff’s proposed transfer to the

CST position for the 1998-1999 school year. Based on this court’s decision in

Sanchez , the district court concluded that because Ms. McCrary would have

remained an elementary school teacher and would not have suffered any reduction

in benefits, pay, or seniority as a result of the transfer, the proposed transfer did

not constitute an adverse employment action that could give rise to liability under

the ADEA. On appeal, Ms. McCrary disputes both the district court’s

determination that her proposed transfer to the CST position did not constitute an

adverse employment action and its determination that none of defendants’ other

challenged conduct constituted an adverse employment action.

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 A “tangible employment action” that may give rise to liability “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.” Burlington Indus., Inc. v. Ellerth , 524 U.S. 742,

761 (1998). In determining what constitutes a tangible or adverse employment

action, “we take a case-by-case approach, examining the unique factors relevant

to the situation at hand. Nevertheless, we will not consider a mere inconvenience

or alteration of job responsibilities to be an adverse employment action.”

Sanchez , 164 F.3d at 532 (quotations and citation omitted).

We conclude that Ms. McCrary did not meet her burden of establishing that

the proposed transfer to the CST position was an adverse employment action.

Ms. McCrary did not dispute that she would have received the same salary and

benefits in the CST position and that her seniority would not have been affected

by the transfer. She argued that the transfer was a demotion, nonetheless, because

it was made against her will and because the responsibilities of the job were

significantly different. “If 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

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denial or receipt of the transfer adverse employment action.” 2
Id. at 532 n.6; see

also Marrero v. Goya of P.R., Inc. , 304 F.3d 7, 25 (1st Cir. 2002) (“It is not

enough that [plaintiff] felt stigmatized and punished by the transfer. A more

tangible change in duties or working conditions is needed before we can conclude

that the transfer was, in substance, a demotion.”) (quotation omitted).

Further, Ms. McCrary made only conclusory allegations about the

differences between the duties of a third-grade classroom teacher and those of the

CST, and the evidence did not establish that the responsibilities of the two jobs

were significantly different. See, e.g., Sanchez , 164 F.3d at 532 (holding that

plaintiff failed to establish that job responsibilities of classroom teacher were

significantly different from those of van teacher); Galabya v. New York City Bd.

of Educ. , 202 F.3d 636, 640-41 (2d Cir. 2000) (holding that plaintiff failed to

establish that previous position at special education junior high school was

sufficiently different from new position at mainstream high school for transfer to

be adverse employment action).

As for the other challenged conduct, we agree with the district court that

none of it gave rise to liability under the ADEA. Even if Ms. McCrary’s

placement on either the remediation plan or the growth plan could be considered

2
For this same reason, Ms. Morris’ denial of Ms. McCrary’s request to be
transferred from her third-grade classroom teaching position to a fourth-grade
classroom teaching position was not an adverse employment action.

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an adverse employment action because the requirements of the plans adversely

affected the conditions under which she performed her job, she did not show that

either action occurred under circumstances giving rise to an inference of age

discrimination, nor did she show that the stated reasons for the requirements of

either plan were pretextual. Because plaintiff failed to establish her claim of age

discrimination by either the direct or the indirect method, the district court

properly entered summary judgment against plaintiff on that claim.

2. Retaliation Claim and Harassment Claim

To survive summary judgment on her claim of age-based retaliation under

the ADEA, Ms. McCrary also bore the burden of establishing a prima facie case.

To do so, she had to show “1) she was engaged in opposition to . . . ADEA

discrimination; 2) she was subjected to adverse employment action; and 3) a

causal connection existed between protected activity and the adverse employment

action.” Sanchez , 164 F.3d at 533. Ms. McCrary argued that she engaged in

opposition to ADEA discrimination when she wrote a letter of rebuttal to her May

1997 performance evaluation and when she filed two grievances against the

school district, one for the January 1998 letter of reprimand and one for the

transfer to the CST position. She further argued that she was retaliated against

for her letter of rebuttal by being placed on a remediation plan and that she was

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retaliated against for her grievances by being denied her requests for

accommodation and by being transferred to the CST position.

Ms. McCrary’s rebuttal of her performance evaluation did not speak to age

discrimination in any fashion and, therefore, did not constitute protected

opposition to age discrimination. The same can be said of her grievance of the

January 1998 letter of reprimand. Her grievance of the proposed transfer to the

CST position, lodged on September 17, 1998, did allege that she was the victim of

age discrimination. But the grievance was not causally related to any adverse

action taken against her. Therefore, summary judgment on plaintiff’s age-based

retaliation claim was proper. Ms. McCrary produced no evidence to support her

claim of age-based harassment. Summary judgment was proper on this claim as

well.

Disability-Based Claims

1. Discrimination Claim

To survive summary judgment on her claim for disability discrimination

under the Americans With Disabilities Act (ADA), Ms. McCrary “bore the burden

of raising a genuine issue of material fact on each element of her prima facie

case.” Doyal v. Okla. Heart, Inc. , 213 F.3d 492, 495 (10th Cir. 2000). To do so,

she had to show “(1) she is a disabled person as defined by the ADA; (2) she is

qualified, with or without reasonable accommodation, to perform the essential

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functions of the job held or desired; and (3) the employer discriminated against

her because of her disability.” Id. “Disability is a term of art under the ADA.”

Id. To satisfy the statutory definition of disability, plaintiff had to show either

that she had “a physical or mental impairment that substantially limits one or

more of [her] major life activities,” or that she had “a record of such impairment,”

or that she was “regarded as having such an impairment.” 42 U.S.C.

§ 12102(2)(A)-(C). Ms. McCrary claimed that she met the first prong of the

definition. Accordingly, she had to establish that she had a physical or mental

impairment, she had to identify one or more affected activities that qualified as a

major life activity (MLA), and she had to show that her impairment(s)

substantially limited one or more of the identified MLAs. See Doyal , 213 F.3d at

495.

In response to summary judgment, Ms. McCrary argued that she suffered

from the following physical or mental impairments, which limited the following

MLAs: (1) mild to moderate learning disabilities and ADD, which limited her

ability to learn, to concentrate, to think, and to work; (2) obstructive sleep apnea-

hypopnea, central sleep apnea-hypopnea, and periodic limb movement disorder,

which limited her ability to sleep; and (3) a swollen trachea and pulmonary

disease, which limited her ability to breathe, to eat, to lift, and to walk. At the

outset, we note that this court has held that concentration is not itself an MLA,

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though it may be a component of some other MLA, such as working or learning.

Pack v. Kmart Corp. , 166 F.3d 1300, 1305 (10th Cir. 1999). The other MLAs

Ms. McCrary identified have been recognized by this or other courts as such, so

we will assume they are valid MLAs for purposes of our analysis.

To establish her prima facie case, plaintiff had to show not just some

limitation of the designated MLAs, but a substantial limitation. The regulations

define the term “substantially limits” as follows:

(i) Unable to perform a major life activity that the average person in
the general population can perform; or

(ii) Significantly restricted as to the condition, manner or duration
under which an individual can perform a particular major life activity
as compared to the condition, manner, or duration under which the
average person in the general population can perform that same
major life activity.

29 C.F.R. § 1630.2(j). If the MLA is working, however, the regulations define

“substantially limits” as “significantly restricted in the ability to perform either a

class of jobs or a broad range of jobs in various classes as compared to the

average person having comparable training, skills and abilities.” Id.

§ 1630.2(j)(3)(i). Further, “if a person is taking measures to correct for, or

mitigate, a physical or mental impairment, the effects of those measures–both

positive and negative–must be taken into account when judging whether that

person is ‘substantially limited’ in a major life activity.” Sutton v. United Air

Lines, Inc. , 527 U.S. 471, 482 (1999).

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 Ms. McCrary did not contend that she was completely unable to perform

any of the MLAs she identified. Therefore, she had to show that she was

significantly restricted as to the condition, manner, or duration under which she

could perform each identified MLA as compared with the average person . We

turn first to plaintiff’s contention that her learning disabilities, including her

ADD, substantially limited her ability to learn, to think, and to work. Plaintiff

presented an evaluation of her learning disabilities performed by Dr. McDonald.

His written report, coupled with his deposition testimony, showed that although

plaintiff had some deficits in her ability to think and to learn when compared with

what would be expected from someone with her strengths, even her deficits were

within the average range. Dr. McDonald testified that generally, Ms. McCrary

was functioning at or above average as compared to the general population,

though on a particular day she might not be. This evidence was not sufficient to

establish a significant limitation in Ms. McCrary’s ability to think or to learn.

As to her ability to work, Ms. McCrary contended that her impairments

substantially limited her ability to perform her job as a teacher. “Inability to

perform a single, particular job is not a substantial limitation.” 29 C.F.R.

§ 1630.2(j)(3)(i). Ms. McCrary did not present any evidence that she was limited

in her ability to perform either a class of jobs or a broad range of jobs in various

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classes. Therefore, she did not establish a substantial limitation in her ability to

work.

We turn then to plaintiff’s sleep disorders and their effect on her ability to

sleep. Ms. McCrary presented studies from two sleep clinics and deposition

testimony from Dr. Scima on her sleep disorders. Dr. Scima testified that

Ms. McCrary’s sleep disorders affected the quality, not the quantity, of sleep she

obtained. Plaintiff completed her first sleep study in February 1997. In April,

she underwent a second study to determine if use of a CPAP machine at night

would ameliorate her symptoms, and she began using a CPAP machine at the end

of April. In July, she underwent a third sleep study, this time by Dr. Scima. This

third study revealed that Ms. McCrary did not suffer from narcolepsy, as she had

previously thought, but that she did suffer from moderate periodic limb movement

disorder in addition to both moderate obstructive sleep apnea/hypopnea and

moderate central sleep apnea/hypopnea. The study also revealed that plaintiff

needed to increase the amount of oxygen pressure on her CPAP machine.

Following this July 1997 study, Ms. McCrary saw noticeable improvement

in the quality of her sleep, and Dr. Scima testified that plaintiff’s sleep disorders

were no longer the cause of any interference with her work. When plaintiff

returned for a follow-up visit on October 6, 1997, Dr. Scima was no longer

concerned with the quality of her sleep, only with the fact that she was getting

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fewer hours of sleep because she was working longer hours. Based on the

evidence presented, including the ameliorative effects of treatment for her sleep

disorders, we conclude that Ms. McCrary did not present a triable issue of fact as

to whether her sleep disorders were sufficiently severe, long term, or of

permanent impact to substantially limit her ability to sleep. See 29 C.F.R.

§ 1630.2(j)(2).

In her response to summary judgment, Ms. McCrary claimed that she also

suffered from a swollen trachea as a result of her sleep apnea and from pulmonary

disease. She claimed that these two impairments limited her ability to breathe, to

eat, to lift, and to walk. Plaintiff presented little to no evidence of the effects of

her swollen trachea or her pulmonary disease on her ability to breathe. The sleep

studies and Dr. Scima’s testimony did provide some information about plaintiff’s

oxygen saturation levels while at rest and asleep, but plaintiff made no attempt to

tie this evidence to her claim that she was substantially limited in the MLA of

breathing.

The district court held that Ms. McCrary failed to show a substantial

limitation on her ability to breathe because her use of supplemental oxygen during

her waking hours ameliorated any limitations on her breathing. Plaintiff argues

on appeal that this holding was in error because her use of oxygen during the day

did not alleviate her sleep disorders. Plaintiff misunderstands the inquiry here.

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To withstand summary judgment, she had to present sufficient evidence to create

a triable issue of fact as to whether her ability to breathe, taking into account the

ameliorative effects of her use of supplemental oxygen during the day and a

CPAP machine at night, was substantially limited as compared to that of the

average person. Ms. McCrary’s minimal evidence was not sufficient to create a

triable issue as to this fact.

Likewise, Ms. McCrary failed to present any evidence demonstrating that

she was substantially limited in her ability to eat, to walk, or to lift as compared

to the average person. Not only did she present little or no evidence about her

own limitations, but she presented no evidence from which a factfinder could

make a comparison between her abilities and those of the average person. See 29

C.F.R. § 1630.2(j); Doyal , 213 F.3d at 497 (holding plaintiff failed to demonstrate

a significant impairment where she introduced no evidence suggesting she

experienced a greater difficulty than others in performing an activity).

In sum, we conclude that the district court properly entered summary

judgment against Ms. McCrary on her claim of disability discrimination because

she failed to establish that she had a disability as defined in the ADA. Because

Ms. McCrary’s discrimination claim failed at this threshold level, we need not

address any of the issues she raises on appeal with regard to reasonable

accommodation.

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 2. Retaliation Claim

To establish a prima facie case of retaliation under the ADA, Ms. McCrary

had to prove the following elements: “(1) that she engaged in an activity

protected by the statute; (2) that she was subjected to an adverse employment

action subsequent to or contemporaneous with the protected activity; [and] (3)

that there was a causal connection between the protected activity and the adverse

action.” Selenke v. Med. Imaging of Colo. , 248 F.3d 1249, 1264 (10th Cir. 2001)

(quotation and brackets omitted). On appeal, she challenges the district court’s

grant of summary judgment on this claim solely on the ground that her proposed

transfer to the CST position was an adverse employment action. We have already

concluded, however, that the transfer was not an adverse employment action.

Section 1983 Claims

Ms. McCrary asserted claims against all the defendants under 42 U.S.C.

§ 1983 for allegedly violating her rights to due process and equal protection. In

particular, she claimed that she was denied due process when defendants failed to

inform her of the name of the ADA coordinator for the school district and when

defendants negotiated with her about accommodations for her impairments

without involving the ADA coordinator. She claimed that the school district

further denied her due process when it refused to waive the defense of

untimeliness and agree to adjudicate her grievance on the merits. Ms. McCrary

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claimed that the school district and Ms. Morris violated her right to equal

protection when Ms. Morris did not consider her for an available fourth-grade

classroom position for the 1998-1999 school year and instead transferred her to

the CST position.

The district court ruled that there was no evidentiary support for these

claims. We agree. The record is replete with evidence that various school district

employees negotiated with plaintiff at length as to possible accommodations for

her claimed impairments. There is no evidence that defendants’ failure to inform

Ms. McCrary of the identity of the district’s ADA coordinator or to involve the

coordinator in those negotiations denied plaintiff any of the process she was due.

Nor is there any evidence of, or legal support for, Ms. McCrary’s claim that the

school district’s valid assertion of a limitations defense to plaintiff’s grievance

denied her due process. As to Ms. McCrary’s claim that her right to equal

protection was violated when she was not considered for a fourth-grade classroom

position and instead was transferred to a CST position, we have already

concluded that neither of those actions constituted an adverse employment action,

and Ms. McCrary has not otherwise shown that they gave rise to an injury for

purposes of § 1983.

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 Breach of Contract Claim

Ms. McCrary also asserted what she characterized as a state law breach of

contract claim against the school district. The district court, believing plaintiff

was asserting a claim for breach of an implied contract based on the employee

manual, ruled that the manual did not create a contract. On appeal, Ms. McCrary

states that it was not her intent to assert a claim for breach of implied contract

based on the employee manual. Rather, she intended to assert a claim for breach

of express contract as a third-party beneficiary to the collective bargaining

agreement between the school district and the teachers’ union.

Ms. McCrary claims that the school district violated the collective

bargaining agreement by discriminating against her on the basis of her age and

her disabilities, by limiting her access to the school building after hours, and by

assigning her to the CST position for which she did not have the required

training. Ms. McCrary’s state law claim for breach of the collective bargaining

agreement is preempted by § 301 of the Labor Relations Management Act, 29

U.S.C. § 185. See Mock v. T.G. & Y. Stores , 971 F.2d 522, 529 (10th Cir. 1992)

(“Under the LMRA, if the resolution of a state-law claim depends upon the

meaning of a collective-bargaining agreement the state-law claim is preempted.”)

(quotation omitted).

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 When a party’s state law claims are preempted under § 301, the court must

either dismiss the claims as preempted or treat them as arising under § 301. See

Allis-Chalmers Corp. v. Lueck , 471 U.S. 202, 221 (1985). “An employee can

bring suit under § 301 of the LMRA only if he or she has exhausted the

contractual remedies provided in the collective bargaining agreements.”

Aguinaga v. United Food & Commercial Workers Int’l Union , 993 F.2d 1463,

1471 (10th Cir. 1993). Ms. McCrary did not demonstrate that she exhausted her

remedies under the collective bargaining agreement. Therefore, any claim under

§ 301 was properly subject to dismissal.

Outrageous Conduct Claim

Ms. McCrary also asserted a state law claim for outrageous conduct against

Ms. Morris based on her conduct toward plaintiff from January through May

1998. The district court ruled that none of this conduct rose to the level of

outrageous conduct as a matter of law. For her claim of outrageous conduct to

survive summary judgment, Ms. McCrary had to demonstrate that Ms. Morris’

conduct was “so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.” Coors Brewing Co. v. Floyd , 978

P.2d 663, 666 (Colo. 1999) (quotation omitted). We agree with the district court

that Ms. McCrary did not make this required showing.

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 Constructive Discharge Claim

Finally, Ms. McCrary appeals the district court’s entry of summary

judgment on her claim for constructive discharge. “To prevail on her claim for

constructive discharge, plaintiff must establish that, because of her age” or, in

this case, her disability, “defendant subjected her to working conditions so

intolerable that a reasonable person would feel compelled to resign.” Bennett v.

Quark, Inc. , 258 F.3d 1220, 1229 (10th Cir. 2001). Again, Ms. McCrary’s

evidence was not sufficient to meet this standard and so survive summary

judgment.

Accordingly, the district court’s judgment is AFFIRMED.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

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