Strickland v. United Parcel Service, Inc.

FILED
United States Court of Appeals
Tenth Circuit

February 24, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CAROLE STRICKLAND,

Plaintiff - Appellant,
v. No. 07-1082
UNITED PARCEL SERVICE, INC., a
Delaware corporation,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 04-CV-1395-RPM)

Hollie L. Wieland, Sears & Swanson, P.C., Colorado Springs, Colorado, for
Plaintiff-Appellant.

Jim Goh (Emily Hobbs-Wright with him on the brief), Holland & Hart LLP,
Denver, Colorado, for Defendant-Appellee.

Before MURPHY, McKAY, and GORSUCH, Circuit Judges.

MURPHY, Circuit Judge.

Plaintiff-Appellant Carole Strickland brought various state and federal

claims against Defendant-Appellee United Parcel Service, Inc. (“UPS”) after she
stopped working for UPS. The only claims at issue in this appeal are claims of

retaliation for utilizing the Family and Medical Leave Act (“FMLA”), 29 U.S.C.

§§ 2601-2654, and sex discrimination. After Strickland presented her case at

trial, the district court granted judgment as a matter of law to UPS on both claims.

The district court ruled Strickland’s FMLA retaliation claim failed as a matter of

law because she could not prove constructive discharge since she testified she did

not intend to quit when she stopped working. The district court also ruled there

was no basis for an inference of sex discrimination because a female co-worker

was not subject to the same mistreatment as Strickland. Strickland appeals these

rulings. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse the

district court on both claims and remand for a new trial on Strickland’s FMLA

retaliation and Title VII sex discrimination claims.

I. Background

Strickland began working for UPS as a temporary driver in 1999. She later

became a permanent driver and, one year later, a salesperson. In January 2002 she

was promoted to key account executive and began working under the supervision

of Troy Roten.

In the fall of 2002 Strickland broke up with her long-term boyfriend. Roten

believed she looked stressed and encouraged her to seek assistance through UPS’s

employee assistance program. Strickland testified Roten suggested she take leave

to work through her personal issues. Strickland stated she did not want to go on

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leave, but Roten pushed for it and she eventually relented. Strickland was on

leave for approximately two weeks.

The day Strickland returned from leave, Roten met with her and asked her

repeatedly whether she was “100 percent” and ready to work. Immediately

following this meeting, she met with Roten and the district manager, Jack

Donnell. Donnell discussed Strickland’s sales plan, telling her “it was

unacceptable, and things needed to change, and [how she] had really let him

down.”

Strickland contends she was subject to increased oversight for the

remainder of her tenure at UPS. She was required to attend frequent meetings and

participate in phone calls with Roten and Donnell regarding her sales

performance. Strickland claims the tone of these meetings was negative, with

Roten warning he would get Donnell involved and Donnell saying she had let the

company down. She testified the meetings interfered with her ability to do her

job because they took place during selling hours and sometimes required her to

drive from Colorado Springs to Englewood. Strickland was told she was required

to be at 100% of all sales quotas. She was also required to sign written

commitments as to which accounts she would win and was criticized for not

meeting the commitments. In addition, Strickland claims Roten ignored her

requests for assistance, telling her at one point he would rather help salespersons

who wanted to be successful. Co-workers testified that Roten refused to answer

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Strickland’s questions during sales meetings, although he answered questions of

other sales representatives.

During a December 2002 meeting with Roten, which Donnell attended via

telephone, Strickland complained she was being singled out since other

employees with similar numbers were not subject to the meetings and the constant

performance evaluations. Roten and Donnell became irate when she made this

allegation. During this meeting Strickland also said she would like to be able to

speak directly to Donnell without going through Roten. Donnell told her she was

permitted to do so under the company’s open door policy. After the meeting,

Roten exploded, accusing Strickland of questioning his authority and telling her

she was not permitted to speak with Donnell directly, notwithstanding the open

door policy.

Three days later, Strickland sent an e-mail to Roten, Donnell, and a human

resources representative detailing why she felt singled out following her return

from leave. She also contacted Kelly Delph, an employee in the human resources

department, who told Strickland she would prepare a formal write-up. Strickland

was later informed by Delph that nothing had been done to investigate her

complaints. Strickland also asked about the possibility of a transfer and was told

by Donnell she was not eligible for a transfer because transfers were only

available to “successful” employees.

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 Strickland was not the only UPS employee who testified that Roten was a

difficult supervisor. One male co-worker described Roten’s managerial style as

“management by fear” and detailed instances when Roten challenged his veracity

and disciplined him without permitting an explanation. Another described Roten

as a micro-manager. One individual, David Bishop, left UPS early in 2002. He

testified he left because he felt singled out by Roten and subject to intense

oversight after he returned from a temporary leave of absence due to work-related

stress.

Multiple co-workers also testified, however, that Strickland was treated

differently from everyone else. At the end of 2002 Strickland was between 93%

and 104% of her sales quotas and was outperforming at least some of her co-

workers on every measure. Strickland’s co-workers were not required to attend

individual meetings with Roten and Donnell or make written sales commitments

even though no one was at 100% of every sales quota. One male co-worker, Paul

Deaton, trailed Strickland in almost every sales measure but was not required to

attend meetings to discuss his performance, was not denied assistance, and was

not counseled for failing to reach 100% in every sales measure. After Strickland

returned from her two-week leave of absence, she had five male co-workers and

one female co-worker. The female co-worker, Penny Harper, testified she was

not treated differently than the male employees, but Strickland was.

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 On January 15, 2003, Strickland went into Roten’s office, turned in her

company laptop, and informed him she was leaving. At trial, she was questioned

at length regarding her state of mind at the time she stopped working. She

testified she was “done,” “at her wits end,” and unwilling to return to that

environment. She said she had no intention of returning to work for Roten. She

did, however, hope to return to work for UPS in a different capacity. Strickland

also testified that when she stopped working she did not believe she had “quit,”

“resigned,” or “terminated” her employment. She also stated she did not intend at

that time to end her employment relationship with UPS, and she characterized her

action as “going out on a leave.”

Strickland never returned to work at UPS, although in May 2003 she

communicated with UPS about returning. She was offered a sales position in

Denver reporting to a different supervisor. She declined this offer because UPS

could not guarantee Roten would not be transferred to that facility and the

position would require a longer commute. Over a year after Strickland stopped

working, she was administratively terminated by UPS.

Strickland filed suit against UPS, and the parties went to trial on the

following claims: retaliation for Strickland’s use of medical leave, in violation of

the FMLA, 29 U.S.C. § 2615 (as interpreted at 29 C.F.R. § 825.220(c)); sex

discrimination, in violation of Title VII of the Civil Rights Act, 42 U.S.C.

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§ 2000e-2(a)(1); 1 retaliation for opposition to sex discrimination, in violation of

§ 2000e-3(a); breach of contract; and breach of the covenant of good faith and

fair dealing. 2 She sought damages including, inter alia, lost wages. After

Strickland presented her case the district court granted judgment as a matter of

law to UPS on all claims. As for the FMLA retaliation claim, the district court

ruled Strickland could not prove damages because she testified she did not quit

working for UPS. Since she testified she did not quit, she could not show she was

constructively discharged, which was necessary to sustain her claim for damages.

The district court also granted judgment as a matter of law on the sex

discrimination claims based on Penny Harper’s testimony that Harper was not

treated differently by Roten. The district court concluded there was no basis for

an inference of sex discrimination. Strickland appeals the district court’s

judgment with respect to the FMLA retaliation and sex discrimination claims.

1
Although Strickland and the district court described Strickland’s Title VII
claims as “gender” discrimination, this court uses the term “sex discrimination”
when discussing her claims because the statute upon which she relies prohibits
discrimination on the basis of sex. 42 U.S.C. § 2000e-2(a)(1).
2
Strickland does not appeal the grant of judgment as a matter of law on her
claims for retaliation for opposing sex discrimination, breach of contract, and
breach of the covenant of good faith and fair dealing.

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 II. Discussion

A. FMLA Claim.

The district court granted judgment as a matter of law to UPS at the close

of Strickland’s case. As to Strickland’s FMLA claim, the court ruled she had

failed to prove damages because she could not show a constructive discharge. A

district court’s decision to grant judgment as a matter of law is reviewed de novo.

Specialty Beverages, L.L.C. v. Pabst Brewing Co., 537 F.3d 1165, 1175 (10th Cir.

2008). When reviewing a decision de novo, this court applies the same standard

applied by the district court. Riske v. King Soopers, 366 F.3d 1085, 1088 (10th

Cir. 2004). A district court may only grant judgment as a matter of law when a

reasonable jury would have no legally sufficient evidentiary basis to rule in favor

of the nonmoving party. Fed. R. Civ. P. 50(a)(1). Judgment as a matter of law is

only appropriate “if the evidence points but one way and is susceptible to no

reasonable inferences which may support the opposing party’s position.” Riske,

366 F.3d at 1088-89 (quotation omitted).

The FMLA only permits the recovery of actual monetary losses, which in

this case would be lost wages. Walker v. United Parcel Serv., Inc., 240 F.3d

1268, 1277-78 (10th Cir. 2001). Strickland did not stop working because she was

terminated, so to recover damages in the form of lost wages, she must

demonstrate she was constructively discharged. Derr v. Gulf Oil Corp., 796 F.2d

340, 342-43 (10th Cir. 1986). Constructive discharge occurs when an employer

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unlawfully creates “working conditions so intolerable that a reasonable person in

the employee’s position would feel forced to resign.” Fischer v. Forestwood Co.,

525 F.3d 972, 980 (10th Cir. 2008) (quotation omitted). The plaintiff’s burden is

substantial. EEOC v. PVNF, L.L.C., 487 F.3d 790, 805 (10th Cir. 2007). The

standard is objective: the employer’s subjective intent and the employee’s

subjective views on the situation are irrelevant. Id. Whether a constructive

discharge occurred is a question of fact. Arnold v. McClain, 926 F.2d 963, 966

(10th Cir. 1991).

The district court granted judgment as a matter of law because it concluded

Strickland did not intend to terminate her employment when she stopped

working. 3 Parts of her testimony supported such a finding. Other parts of her

testimony, however, revealed ambiguity on the issue. Strickland testified she

would not return if she had to work for Roten. She also testified she was “done”

and “at her wits end.”

The existence of constructive discharge is an issue of fact to be resolved by

the jury, and judgment as a matter of law is only appropriate if the evidence is

susceptible to but one interpretation. Riske, 366 F.3d at 1088-89. The testimony

3
Strickland argues her subjective intent as to whether she was permanently
quitting or temporarily taking leave is irrelevant, since the standard for
constructive discharge is objective. In light of our holding that the evidence
could support a finding of intent to quit, we leave open the question of whether a
subjective intent to quit is a necessary element of constructive discharge. See,
e.g., White v. Honeywell, Inc., 141 F.3d 1270, 1279-80 (8th Cir. 1998).

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here is susceptible to multiple interpretations. A jury could find Strickland

intended only to take temporary leave. On the other hand, a jury could

alternatively find she left UPS with no intention of returning to work under

Roten. While she expressed a hope that UPS would offer her a different position

where she would have no contact with Roten, such a hope did not necessarily

negate her intent to permanently stop working in her former position. Since the

evidence could have been interpreted by a reasonable jury in Strickland’s favor,

the district court erred in granting judgment as a matter of law to UPS on the

issue of constructive discharge.

UPS argues the district court’s ruling can be affirmed on alternative

grounds. First, UPS claims the conditions at work were not so bad as to be

intolerable. Second, UPS claims Strickland was objectively unreasonable in

refusing UPS’s offer to let her return in a different position where she would not

be reporting to Roten.

As for the first contention, whether the conditions at UPS were objectively

intolerable is a question of fact for the jury. Arnold, 926 F.2d at 966. Strickland

put on sufficient evidence to support a finding of constructive discharge. The

conditions to which she was subjected are similar to conditions considered by this

court in Acrey v. American Sheep Industry Ass’n, 981 F.2d 1569, 1574-75 (10th

Cir. 1992). In Acrey, the plaintiff believed her job was in jeopardy, she had been

confronted by her supervisor with performance shortcomings, job responsibilities

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had been taken away from her, and “she received inadequate information and

training to perform her . . . duties.” Id. at 1574. The court held the plaintiff

presented sufficient evidence to support a constructive discharge claim. Id. at

1575. Here, Strickland did not have job responsibilities taken from her, but she

did believe her job was in jeopardy, she was repeatedly told by her supervisors

her performance was unacceptable, and she was not provided support to perform

her job when she requested it. In addition, her supervisors forced her to make

written “commitments” to win certain contracts, which in her view was a

deliberate attempt to set her up to fail. She testified her meetings with

supervisors to discuss her performance interfered with her ability to do her job.

Roten exploded when she tried to take advantage of the company’s open door

policy and effectively told her she could not utilize the policy. She was held to

higher standards than her co-workers. Finally, she attempted to improve her

situation by filing an internal complaint and requesting a transfer, but neither

action was helpful. This evidence, viewed in the light most favorable to

Strickland, suggests a workplace more intolerable than the workplace in Acrey,

and UPS is not entitled to judgment as a matter of law on this basis.

The availability of the alternative job relates to the question of whether a

reasonable employee would have felt compelled to leave UPS. Exum v. U.S.

Olympic Comm., 389 F.3d 1130, 1135-36 (10th Cir. 2004). The most obvious

problem with UPS’s suggestion that the alternative job offer made Strickland’s

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decision unreasonable is that the offer was not tendered until four months after

Strickland stopped working. A reasonable person, at the time Strickland left

UPS, would not have been able to consider this alternative. Additionally, the new

position would have required a longer commute for Strickland and offered no

guarantee that she would not work for Roten. A rational jury could find this to be

an unrealistic option, and therefore judgment as a matter of law was improper on

these grounds as well.

B. Sex Discrimination Claim.

Strickland also appeals the district court’s grant of judgment as a matter of

law to UPS on her sex discrimination claim. 4 In support of her claim, she elicited

testimony from co-workers, both male and female, who stated she was treated

differently from everyone else. This included testimony from one male co-

worker, Paul Deaton, who trailed Strickland in nearly every sales measure but was

4
Strickland appears to have proceeded under two separate Title VII
theories: disparate treatment and hostile work environment. To prove her
disparate treatment claim, Strickland must show she suffered an adverse
employment action because of her sex. Orr v. City of Albuquerque, 417 F.3d
1144, 1149 (10th Cir. 2005). As discussed above, she has presented evidence of
constructive discharge and constructive discharge is an adverse employment
action. Fischer v. Forestwood Co., 525 F.3d 972, 980 (10th Cir. 2008).
To prove a hostile work environment claim, she must show her workplace
was “permeated with discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment.” MacKenzie v. City & County of
Denver, 414 F.3d 1266, 1280 (10th Cir. 2005) (quotation omitted). Because the
district court concluded a jury could not infer Strickland was treated differently
based on her sex, it did not specifically address her hostile work environment
claim.

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not subjected to the same treatment as Strickland, including the individualized

meetings to discuss performance, the lack of support, and the requirement of

being at 100% on all sales goals. Strickland had only one female co-worker,

Penny Harper. Harper testified she was not treated differently from the males in

the office, but Strickland was treated differently. On the basis of Harper’s

testimony, the district court granted judgment as a matter of law to UPS. The

district court reasoned that since Harper was not treated differently, the jury could

not infer Strickland’s alleged mistreatment was due to her sex. Although not

relied upon by the district court, on appeal UPS also points out that Bishop, a

male former co-worker of Strickland, left the company some months earlier under

similar pressure from Roten. Additionally, Strickland’s male co-workers

complained of Roten’s managerial style. This evidence, UPS argues, further

demonstrates that males and females were treated similarly, thus negating

Strickland’s sex discrimination claims.

A sex discrimination claim does not fail simply because an employer does

not discriminate against every member of the plaintiff’s sex. Pitre v. W. Elec.

Co., 843 F.2d 1262, 1272-73 (10th Cir. 1988). While Harper’s treatment might be

relevant to the issue of UPS’s intent, it does not resolve the issue as a matter of

law. Paul Deaton was similarly situated to Strickland and had worse sales

numbers, yet he was not subject to the same requirements and oversight as

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Strickland. 5 From this evidence the jury could have found that Strickland was

subjected to sex discrimination notwithstanding Harper’s testimony that Roten did

not treat her differently. The district court erred, therefore, in granting judgment

as a matter of law to UPS on the Title VII sex discrimination claims on that basis.

The evidence UPS cites regarding the treatment of Strickland’s male co-

workers also does not compel judgment as a matter of law. Even though the male

co-workers complained of Roten’s managerial style, they and others also testified

Strickland was treated differently from every male employee Roten supervised. 6

Bishop is the only male employee who was subjected to treatment approaching

what Strickland experienced. While his testimony, like Harper’s, may undermine

Strickland’s sex discrimination claim, it does not defeat that claim as a matter of

5
The dissent argues that Strickland compared herself to Deaton only in her
reply brief and that Deaton was not similarly situated to Strickland because he
was located in a different office. Dissenting Op. 2-3. While Strickland did not
refer to Deaton by name in her opening brief, she cited Deaton’s testimony for the
proposition that “similarly situated sales representatives with similar or lower
sales had no such requirement [to be counseled regarding sales performance].”
Aplt.’s Br. 8.
For its part, UPS argued Deaton was a “similarly-situated male employee”
who was not treated differently from Strickland. Appellee’s Br. 20-21. UPS
therefore effectively conceded that Deaton and Strickland were similarly situated.
6
The dissent fails to acknowledge this evidence in concluding the record
lacks “any evidence suggesting that Mr. Roten treated Ms. Strickland less
favorably than any other male employee he supervised.” Dissenting Op. 4. To
the contrary, in response to the question of whether Roten “treated women
differently than he treated male employees,” Joe Napikoski stated, “I know he
treated Carole differently than he treated us.” Deaton, despite having lower sales
figures than Strickland in nearly every measure, testified he was not counseled or
required to attend individual meetings regarding his sales performance.

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law in light of other testimony that she was treated worse than her male co-

workers, including Deaton, who had inferior sales numbers. Id. at 1272 (“[A]n

employer is not immunized from liability simply because some males received

detriments before or contemporaneously with a Title VII plaintiff.”). Therefore,

the district court erred in preventing Strickland’s sex discrimination claim from

going to the jury.

III. Conclusion

Because Strickland created a triable issue of fact as to whether she was

constructively discharged, her FMLA retaliation claim should have been

submitted to the jury. Likewise, the evidence she was treated worse than her male

co-workers was sufficient to require that her sex discrimination claim go to the

jury. The judgment of the district court is therefore reversed and remanded for

a new trial on Strickland’s FMLA retaliation and sex discrimination claims.

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07-1082, Strickland v. United Postal Service

GORSUCH, J., Circuit Judge, concurring in part and dissenting in part.

I admire and concur entirely in my colleagues’ thoughtful treatment of Ms.

Strickland’s FMLA claim, and am pleased to join Parts I and II.A of the court’s

opinion. With respect to the gender discrimination claim discussed in Part II.B, I

would affirm the judgment of the district court.

To establish a prima facie case of gender discrimination in violation of

Title VII, a plaintiff must establish, among other things, that the adverse action

complained of occurred “under circumstances which give rise to an inference of

unlawful discrimination.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d

1220, 1227 (10th Cir. 2000) (quoting Texas Dep't of Community Affairs v.

Burdine, 450 U.S. 248, 253 (1981)). Ms. Strickland sought to establish an

inference of discrimination from circumstantial evidence – by showing that Mr.

Roten treated similarly situated male employees better than her. This, of course,

she was entitled to do. The difficulty is that the record in this case shows that

Mr. Roten harassed male employees in very much the same manner as he harassed

Ms. Strickland.

In her opening brief, Ms. Strickland devotes her discussion section to

arguing that Mr. Roten treated Joe Napikoski, a similarly situated male employee,

more favorably than her. But Mr. Napikoski testified that Mr. Roten “manage[d]

by fear,” and that “after three or four months of working for Troy [Roten],
literally every day I came to work I didn’t know if I was going to leave that day

with my job or not.” App. at 43. He further testified that Mr. Roten was a “very

demanding manager,” who was “prone to micromanagement” and who “closely

monitor[ed]” Mr. Napikoski and accused him of insubordination. Id. at 67-68. In

fact, the “entire sales team,” Mr. Napikoski explained, met with Mr. Roten’s boss

“just to describe our frustration and give him specific examples of why we felt the

way we did.” Id. at 46. Mr. Napikoski didn’t think Mr. Roten was singling him

out. Far from it. “I think he probably did this to everybody,” he testified. Id. at

74. 1

1
The majority points to Joe Napikoski’s statement that, “I know [Mr.
Roten] treated Carole differently than he treated us.” Maj. Op. at 14 n.6. But this
statement followed a lengthy discussion by Mr. Napikoski of how differently Ms.
Strickland was treated when she came back from FMLA leave. Mr. Napikoski was
asked if, when Ms. Strickland returned from her leave, “she [was] treated
differently than before she went out on leave?” To which he replied,
unequivocally, “Yes. . . . The effort was to, in my opinion, was to, you know,
make or break, you know, provide so much additional stuff that she had to do, and
so much torment that she would just eventually walk out. . . . It was almost like
they were mad that she had taken advantage of the company by taking some time
off with pay. It’s almost how dare you.” App. at 51-52; see also id. at 53. That
Mr. Napikoski would, shortly after this discussion, state that Ms. Strickland was
treated differently than other employees is simply consistent with her claim that
she was retaliated against for taking FMLA leave. It does not, taken in context,
suggest that her mistreatment occurred “under circumstances which give rise to an
inference of unlawful discrimination” on the basis of gender. Kendrick, 220 F.3d
at 1227 (quoting Burdine, 450 U.S. at 253).

Underscoring this point, Mr. Napikoski testified that two other males and
one other female from their group took FMLA leave. He explained that the two
males who took leave for stress-related reasons, like Ms. Strickland, were both
(continued...)

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 In the discussion section of her reply brief before us, Ms. Strickland shifts

course. Perhaps recognizing the difficulty of claiming that Mr. Napikoski

received more favorable treatment from Mr. Roten, Ms. Strickland asks us to

consider Paul Deaton. Ms. Strickland argues, and my colleagues agree, that Mr.

Deaton “had worse sales numbers [than Ms. Strickland], yet he was not subject to

the same requirements and oversight as [Ms.] Strickland.” Maj. Op. at 13-14.

But Mr. Deaton was stationed in Pueblo, approximately fifty miles south of

Colorado Springs, and thus had “limited” interactions with the Colorado Springs

office where Mr. Roten worked. App. at 171-72. Because Mr. Deaton’s

appearances at the Colorado Springs center were infrequent – anywhere between

once a month and once a quarter – he is a poor yardstick for comparison to Ms.

Strickland, who worked closely by Mr. Roten in Colorado Springs. Id. at 172; see

Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997) (“Similarly

situated employees are those who deal with the same supervisor and are subject to

the same standards governing performance evaluation and discipline. A court

1
(...continued)
treated very unfavorably on their return. App. at 58-59. Meanwhile, the female
took leave because she was pregnant, and it was “very clear” to Mr. Napikoski
that “it was a total different situation whenever someone went out on FMLA for a
pregnancy . . . . [I]t was very seamless.” He continued: “it was totally different if
you happened to go out on FMLA for work stress related situations.” Id. at 59.
Viewed in its entirety, Mr. Napikoski’s testimony thus surely suggests Mr. Roten
discriminated against those who took FMLA leave for stress-related reasons he
considered inappropriate, but it simply does not support any reasonable inference
of discrimination on the basis of gender.

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should also compare the relevant employment circumstances . . . applicable to the

plaintiff and the intended comparable employees in determining whether they are

similarly situated.”) (internal citation and quotation omitted).

Despite the cushion of distance, however, the record shows that Mr. Roten

still subjected Mr. Deaton to much the same harassing oversight he imposed on

Ms. Strickland and other employees. Mr. Roten would email and call Mr. Deaton

several times a day, and would go on “ride-alongs” with him. App. at 172-73,

175-76. Mr. Roten was a “micromanager,” Mr. Deaton testified, that “just

want[ed] details on things” and “would just stay after you constantly.” Id. at 173,

175. Mr. Roten would require Mr. Deaton, like everyone else, to submit weekly

calenders, a requirement which Mr. Deaton tried to follow through on so that he

“wouldn’t have to go through any crud with [Mr. Roten].” Id. at 174. In the end,

Mr. Deaton testified, he was “glad that [he] was south of the Springs,” in Pueblo.

Id. at 176. Far from showing that Mr. Deaton was a similarly situated male

treated more favorably than Ms. Strickland, the record thus shows that, despite

not being at the same facility as Mr. Roten, Mr. Deaton was subjected to the same

harassing style of management as Ms. Strickland. 2

2
In her reply brief, Ms. Strickland summarily states, in one sentence, that
Don Stephas was also a similarly situated male employee who was treated more
favorably by Mr. Roten. It is difficult to evaluate this conclusory statement that
includes no supporting rationale or citations to the record. MacArthur v. San
Juan County, 495 F.3d 1157, 1160-61 (10th Cir. 2007) (“[M]ere conclusory
(continued...)

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 Given all this, the record could certainly suggest to a reasonable factfinder

that Mr. Roten treated Ms. Strickland poorly in retaliation for her decision to

exercise her FMLA rights (as the plaintiff argues and we hold today), or that Mr.

Roten was a difficult and unpleasant manager to males and females alike (bad for

business, but not legally actionable either), or perhaps that Mr. Roten treated Ms.

Strickland as he did because she performed poorly (as the defendant claims).

What’s missing from the record, however, is any evidence suggesting that Mr.

Roten treated Ms. Strickland less favorably than any other male employee he

supervised.

Certainly, as the court rightly notes, we held in Pitre v. Western Elec. Co.,

Inc., 843 F.2d 1262 (10th Cir. 1988), that the fact that similarly situated males

were treated just as poorly as a female plaintiff, or the fact that other women were

treated more favorably than the plaintiff, does not necessarily “preclude the

district court from finding a statutory violation.” Id. at 1273. But this undisputed

principle does not obviate the requirement that Ms. Strickland come forth with

some direct or circumstantial evidence suggesting that Mr. Roten’s treatment of

her arose “under circumstances which give rise to an inference of unlawful

2
(...continued)
allegations with no citations to the record or any legal authority for support does
not constitute adequate briefing.”). In any case, the record does reveal that Mr.
Stephas, like Mr. Deaton, was situated at a location apart from Colorado Springs
(seventy miles away in Denver), and yet was subjected to much the same strict
scrutiny from Mr. Roten as Ms. Strickland. See App. at 183-84.

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discrimination.” Kendrick, 220 F.3d at 1227 (quoting Burdine, 450 U.S. at 253).

Such evidence was plentiful in Pitre, where the class plaintiffs offered statistical

evidence that women suffered a disproportionate number of downgrades within

the defendant-company; statistical evidence of a clustering of women at lower-

paying salary grades; evidence that management personnel who made promotion

and demotion decisions held discriminatory attitudes towards women; evidence

that the management personnel acted upon those attitudes through beneficial

treatment for men in promotion and demotion decisions and through harassment

of women; and testimony from several women regarding instances of sexual

harassment. Pitre, 843 F.2d at 1268-70. The difficulty for Ms. Strickland is that

any such evidence of discrimination on the basis of gender is absent in her case.

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