FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 25, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
CYNTHIA MONTOYA,
Plaintiff - Appellant,
v. No. 14-1491
(D.C. No. 1:13-CV-02408-RPM)
HUNTER DOUGLAS WINDOW (D. Colo.)
FASHIONS, INC.,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Cynthia Montoya appeals the district court’s decision granting summary
judgment in favor of her former employer, Hunter Douglas Window Fashions, Inc.,
on her claims of gender discrimination in violation of Title VII of the Civil Rights
Act of 1964 and retaliation under the Family Medical Leave Act (FMLA). Because
we conclude Montoya fails to show pretext for either her discrimination claim or her
retaliation claim, we affirm the district court’s ruling.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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. See Fed. R. App. P. 32.1;
10th Cir. R. 32.1.
BACKGROUND
Montoya worked for Hunter Douglas from 1997 to 2012. In 2008, Jeff Geist
promoted Montoya to fabrication supervisor, a position requiring her to supervise 55
employees. In 2009, Montoya used FMLA leave for about three weeks. During
Montoya’s absence, several employees advised Geist that Montoya recently had been
devoting work time to personal internet use, making her unavailable to assist
employees with work matters. Geist investigated and discovered that Montoya
consumed 24.5 hours during a six-week period browsing the internet for personal
purposes. As a result, Geist issued Montoya a “Final Warning and Performance
Improvement Plan.” Aplt. App. 411. The plan generally directed that Montoya be
available to her team and engaged in her work and specifically outlined certain
performance expectations Montoya needed to meet including limiting internet
activity to work-related tasks. The plan warned Montoya that her “[f]ailure to sustain
performance expectations” outlined in the plan would subject her to “further
corrective action up to and including termination.” Supp. App. 82.
In 2010, Geist noted in a follow-up report that Montoya had improved her
overall performance and significantly decreased her personal internet use. Later that
year, Geist gave Montoya a positive performance review. In July 2011, Geist
documented that he addressed an issue with Montoya regarding her negative
approach to her daily work. Geist noted, in part, that Montoya was “[g]oing through
the motions, and not showing much engagement in her job,” and expressing
displeasure about covering overtime shifts. Supp. App. 117. Geist noted that he
2
advised Montoya her negative approach was reminiscent of her past behavior and that
she needed to be more positive. Geist attached the documentation of his July 2011
conversation with Montoya to an October 2011 performance review, but otherwise
gave her a positive review.
In August 2012, Montoya experienced personal difficulties. On Friday, August
3, she took leave from work to care for her terminally ill mother. That weekend, she
received treatment from a psychologist for “stress and relationship complications”
after her fiancé broke off their engagement. Supp. App. 49. On Monday, August 6,
she communicated with Geist by text message and phone call, informing him that she
would return to work on Wednesday, August 8. On Wednesday, she left a voicemail
message for the company’s human resources representative Trish Devlin, saying her
“doctor was taking [her] off work for the remainder of the week.” App. 79. In the
message, Montoya also said she would be out the following week as part of a
previously scheduled vacation and that she wanted to convert those vacation days
into FMLA leave.
Hunter Douglas’ insurance company, CIGNA, sent the required FMLA
paperwork to Montoya’s home, but Montoya asserts she never received the forms.
However, Montoya didn’t contact Devlin or anyone else to follow up on her request
for FMLA leave, and CIGNA ultimately denied FMLA leave due to Montoya’s
failure to submit the required certification from her health care provider. In any
event, Hunter Douglas paid Montoya for the days she was absent and didn’t classify
her absence as FMLA leave.
3
While Montoya was out on leave, her coworkers and subordinates advised
Geist that her job performance had slipped again. Specifically, they reported that
Montoya often left early, was absent from the workplace for hours, was rarely on the
production floor, was constantly on her cell phone, and used the internet to plan her
wedding and visit other non-work-related websites.
Geist investigated Montoya’s internet use and discovered that in the preceding
two months, she had recorded more than 11,825 internet hits on non-work-related
websites. This included nearly 1,800 hits on three specific retail and social media
websites—macys.com, facebook.com, and menswearhouse.com. Geist also
discovered that Montoya failed to complete or deliver performance reviews—some of
which were overdue by six to eight months—for eight of her subordinates. Geist and
Devlin confronted Montoya with their concerns about her job performance when she
returned to work on August 20. Montoya acknowledged that she hadn’t provided
performance reviews to several of her subordinates but claimed “that things had been
very busy.” Supp. App. 129. She also admitted her increased personal internet use,
attributing it to excitement about her wedding.
Two days later, Hunter Douglas terminated Montoya’s employment. Devlin’s
notes reflect that Montoya received “a Final Written Warning for violating Internet
usage and a Performance Improvement Plan, 11-20-09,” and that “[t]he decision was
made to end her employment due to violation of [the] Final Written Warning, and
[her inability] to sustain requirements of [the] PIP.” Supp. App. 129.
4
Montoya sued Hunter Douglas for gender discrimination under Title VII and
for FMLA retaliation.1 The district court granted summary judgment in favor of
Hunter Douglas, and Montoya appeals.
DISCUSSION
We review a district court’s decision granting summary judgment de novo.
Fulghum v. Embarq Corp., 785 F.3d 395, 403 (10th Cir. 2015). Summary judgment is
appropriate when “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). We view the facts and evidence submitted by the parties in the light most
favorable to the nonmoving party. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014).
I. Montoya fails to show pretext in her gender discrimination claim.
The district court granted summary judgment on Montoya’s gender
discrimination claim after concluding Montoya failed to demonstrate Hunter
Douglas’ proffered explanation for her termination—poor job performance related to
an overall lack of engagement in her work and excessive personal internet use that
interfered with her supervisory duties—was pretext for gender discrimination. On
appeal, Montoya essentially argues she presented overwhelming evidence of pretext.
Specifically, she points to evidence (1) that Hunter Douglas didn’t similarly
discipline male employees who used the internet for personal use or male supervisors
who delayed completion of performance reviews; (2) that Hunter Douglas failed to
take into account the timing of her personal internet use or the fact that her internet
1
Montoya also asserted various state law claims, but she voluntarily dismissed
those claims before filing this appeal.
5
use was often work-related; and (3) that her 2009 Performance Improvement Plan
ended years before her termination and couldn’t have been a basis for her
termination. Finally, she alleges pretext because she often worked long hours beyond
her scheduled shift and received positive performance reviews, which Hunter
Douglas acknowledges.
We analyze Montoya’s gender discrimination claim under the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this
framework, it is Montoya’s initial burden to establish a prima facie case of
discrimination. Once she does so, the burden shifts to Hunter Douglas to articulate a
legitimate, nondiscriminatory reason for the adverse employment action. See Lobato
v. N.M. Envtl. Dep’t, 733 F.3d 1283, 1288 (10th Cir. 2013). If Hunter Douglas makes
the required showing, the burden returns to Montoya to show a genuine dispute about
whether the proffered explanation was pretext for discrimination. See id. at 1289.
Montoya may establish pretext by showing “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could rationally find
them unworthy of credence and hence infer that the employer did not act for the
asserted non-discriminatory reasons.” Bennett v. Windstream Commc’ns, Inc., 792
F.3d 1261, 1267 (10th Cir. 2015) (quoting Jones v. Okla. City Pub. Sch., 617 F.3d
1273, 1280 (10th Cir. 2010)).
Notably, the primary bases Hunter Douglas cited as impacting Montoya’s job
performance and supporting termination—her excessive internet use and overdue
6
performance reviews—aren’t really disputed. Instead, regarding her internet use,
Montoya suggests Hunter Douglas tolerated personal use from other employees,
including men, thus demonstrating pretext. For its part, Hunter Douglas
acknowledges that it tolerated occasional personal internet use despite its written
policy strictly prohibiting it. But Hunter Douglas points out that it extended such
tolerance only as long as an employee’s limited use didn’t interfere with work
performance.
And therein lies the rub for Montoya. The record demonstrates that Montoya’s
personal internet use far exceeded limited personal use2 and that Hunter Douglas
attributed her work performance issues (including that she was several months behind
in delivering performance reviews and not always responsive to her subordinates’
needs) to that excessive use. Nor does Montoya dispute that several of her coworkers
complained about Montoya’s performance issues in August 2012, including her
frequent practices of leaving early and taking long lunches, her favoritism toward
certain employees, and her non-responsiveness to their issues.
Moreover, while Montoya accuses some male employees of personal internet
use and identifies others who delivered delayed performance reviews, she fails to
identify a single male employee treated differently under similar circumstances.
2
The district court found that Montoya “visited 20,761 websites including”
nearly 1,800 visits to three specific retail websites between June 1 and July 31, 2012.
App. 413. The record actually demonstrates 20,761 hits on websites rather than visits
to 20,761 different websites. And at least some of those more than 20,000 hits were
on work-related websites. But Geist’s notes list a sample of seven unauthorized
websites that account for 11,825 hits, including the nearly 1,800 hits on macys.com,
facebook.com, and menswearhouse.com—websites that Montoya concedes aren’t
work related.
7
Specifically, she hasn’t identified any male employee who had similar excessive
personal internet use that negatively affected his job performance, such as failing to
complete performance reviews or becoming disengaged from subordinates.
Thus, Montoya has failed to point to any evidence to show that Hunter
Douglas’ reason for her termination was so implausible, incoherent, or contradictory
that Hunter Douglas “did not act for the asserted non-discriminatory reason[].”
Bennett, 792 F.3d at 1267. Accordingly, she has failed to meet her burden to show a
genuine dispute as to pretext and we affirm summary judgment in favor of Hunter
Douglas on her gender discrimination claim.
II. Montoya fails to show pretext in her FMLA retaliation claim.
Next, Montoya argues the district court erred in finding she failed to state a
prima facie case with respect to her claim that Hunter Douglas terminated her
employment in retaliation for her request for FMLA leave.
We analyze retaliation claims under the McDonnell Douglas framework,
which in this context requires that Montoya bear the initial burden of establishing a
prima facie case of retaliation by showing that (1) she engaged in a protected activity,
(2) Hunter Douglas took an action that a reasonable employee would have found
materially adverse, and (3) there is a causal connection between the protected activity
and the adverse action. If Montoya establishes a prima face case, then Hunter
Douglas must offer a legitimate, nonretaliatory reason for her termination. Montoya
then bears the burden of showing the reason is pretextual. See Metzler v. Fed. Home
Loan Bank of Topeka, 464 F.3d 1164, 1170-71 (10th Cir. 2006).
8
As with her gender discrimination claim, Montoya fails to direct our attention
to evidence, other than temporal proximity,3 creating a genuine issue of material fact
as to pretext. See Brown v. ScriptPro, LLC, 700 F.3d 1222, 1230 (10th Cir. 2012)
(noting that an employee must present circumstantial evidence of retaliatory motive
in addition to evidence of temporal proximity to raise a fact issue as to pretext).
Instead, Montoya offers only her personal opinion that Hunter Douglas “did not like
[employees] taking FMLA leave[],” and subtly discouraged it. Aplt. App. 279. But
she offers no admissible evidence of Hunter Douglas routinely denying employee
requests for FMLA leave or retaliating against any other employee for requesting it.
Thus, assuming Montoya established a prima facie case of retaliation, we
conclude Hunter Douglas has offered a legitimate, nonretaliatory reason for her
termination and Montoya hasn’t met her burden to show a genuine dispute as to
whether that reason was pretextual.
We affirm the district court’s grant of summary judgment in favor of Hunter
Douglas.
Entered for the Court
Nancy L. Moritz
Circuit Judge
3
Montoya requested FMLA leave on August 8, 2012. Hunter Douglas
terminated her employment two weeks later on August 22, 2012.
9