F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 18 2001
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
LEROY GLOVER, JR.,
Plaintiff-Appellant,
v. No. 00-3266
(D. Kan.)
NMC HOMECARE, INC., a Delaware (D.Ct. No. 98-CV-2477)
corporation, d/b/a Fresenius Medical
Care North America,
Defendant-Appellee.
____________________________
ORDER AND JUDGMENT *
Before HENRY,Circuit Judge, and HOLLOWAY and BRORBY, Senior Circuit
Judges.
Mr. Glover appeals from the district court’s grant of summary judgment in
favor of his former employer, NMC Homecare, Inc. (“NMC Homecare”). Mr.
Glover challenges the district court’s decision on his claims of hostile work
environment in violation of 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”), racial
*
This order and judgment is not binding precedent except under the doctrines of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.
discrimination in violation of Title VII and 42 U.S.C. § 1981 (“Section 1981”),
and “whistleblower” retaliatory discharge in violation of Kansas state law. 1 We
have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.
BACKGROUND
From September 1996 until his termination in May 1998, Mr. Glover
worked for NMC Homecare in its Billing Center in Lenexa, Kansas (“Kansas
Billing Center”). The Kansas Billing Center billed and collected for the services
provided by the NMC Homecare Renal Support Centers (“Renal Support
Centers”). NMC Homecare had five Renal Support Centers located in: (1)
Merriam, Kansas; (2) Anaheim, California; (3) Charlotte, North Carolina; (4)
Houston, Texas; and (5) Monroe, Louisiana. The Renal Support Centers accepted
call-ins for prescription medications, verified insurance information, completed
portions of paperwork and mixed patient’s prescriptions.
NMC Homecare hired Mr. Glover, an African-American male, in September
1996, as one of two “team leaders” in the Kansas Billing Center. When he was
1
Mr. Glover does not appeal, and we do not address, the district court’s grant of
summary judgment in favor of NMC Homecare on Mr. Glover’s claims of intentional
infliction of emotional distress and disability discrimination.
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hired, the teams were organized based on the type of therapy billed. One team
billed for Intra-Dialytic Parenteral Nutrition Therapy, a nutrition supplement for
individuals with end stage renal disease, and the other team billed for Homecare
Services. By the spring and summer of 1997, following corporate changes, the
teams were re-structured around the two separate computer billing systems used
by the Kansas Billing Center. Mr. Glover supervised the team billing “System
36” accounts; Ms. Sarratt supervised the team billing “MESTA” accounts.
In April 1997, NMC Homecare promoted Dr. Schwebke, who was a
manager of its pharmacy operations, to the position of Intra-Dialytic Parenteral
Nutrition Director of Operations. She was responsible for the Renal Support
Centers. Shortly thereafter, Ms. Allen, who was the Medicare Reimbursement
manager and hired Mr. Glover, moved into the position of Kansas Billing Center
manager. She reported to Mr. Roy, the Director of Finance. Mr. Glover
continued to report directly to Ms. Allen.
In June 1997, Dr. Schwebke learned of a potential problem with the
Charlotte, North Carolina Renal Support Center’s completion of “certificates of
medical necessity,” a specific Medicare Program form describing a patient’s
medical condition. Dr. Schwebke immediately contacted the Corporate
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Compliance Department to report the paperwork problem, and went to the
Charlotte branch to investigate the situation. In July 1997, Mr. Glover
independently discovered the same potential problem and reported it to
individuals in the Kansas Billing Center’s Homecare Division; he did not,
however, disclose the problem to the Intra-Dialytic Parenteral Nutrition Division
in which he worked. As a result of Mr. Glover’s report (“July report”), the head
of the Homecare Division knew about the potential problem before the head of
the Intra-Dialytic Parenteral Nutrition Division. Ms. Allen subsequently told Mr.
Glover that the head of the Division where Mr. Glover worked was upset that he
learned of the problem after the head of the Homecare Division was notified. Mr.
Glover, however, was not criticized in his annual performance evaluation for
alerting the company to the potential problems with the certificates of medical
necessity. Ms. Allen did note in his evaluation that he “needs to be aware of the
chain of command for our division.” In the summer of 1997, NMC Homecare
conducted an investigation related to the altered certificates of medical necessity.
In August 1997, Dr. Schwebke assumed responsibility for the Kansas
Billing Center, and Ms. Allen began reporting to Dr. Schwebke. Shortly
thereafter, NMC Homecare hired Mr. Turpin to work as financial services
manager, a non-supervisory position, based out of St. Petersburg, Florida. In
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November 1997, the Kansas Billing Center teams were again reorganized and
structured into a “market-centered concept.” The reorganization was intended to
increase NMC Homecare’s collections and efficiency. Under the “market
centered concept,” the patient account representatives (“collectors”) were divided
into three teams, each team assigned to bill and collect for a particular Renal
Support Center. 2 All the teams reported directly to Ms. Allen.
Pursuant to this reorganization, NMC Homecare eliminated Mr. Glover’s
and Ms. Sarratt’s team leader positions and reassigned them to new, non-
supervisory positions. Mr. Glover was “demoted” to the position of “Critical
Accounts Specialist” to collect difficult Medicare accounts contained in the
computer billing system “System 36.” 3 Mr. Glover was not trained on the
“MESTA” billing system. Ms. Sarratt, the other former team leader, was
reassigned to the newly created position of Senior Patient Account
2
Prior to the November 1997 reorganization of the Kansas Billing Center, only
three of the five Renal Support Centers remained.
3
Mr. Glover claims his reassignment was a demotion because he was isolated, no
longer supervised other employees and shared the same responsibilities as the employees
he formerly supervised. NMC Homecare contends he was transferred to a lateral position
because his income and benefits did not change. Because we view the evidence in the
light most favorable to Mr. Glover, the non-moving party, we assume, without deciding,
his new position was a demotion.
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Representative.
In the first week of December 1997, Mr. Glover told a co-worker that he
was twice sexually harassed by Mr. Turpin when he went to Mr. Turpin’s hotel
room after work to discuss business. According to Mr. Glover, Mr. Turpin
physically touched him, watched him urinate, and made sexually suggestive
remarks. Glover resisted Mr. Turpin’s sexual advances.
After Mr. Glover told his co-worker about the sexual harassment, the co-
worker notified Dr. Schwebke. Dr. Schwebke reported the allegations to the
Corporate Human Resource Department (“Resource Department”). The Resource
Department directed Dr. Schwebke to ask Mr. Glover to document his allegations
in writing. Within a few days, Mr. Glover submitted two written accounts of the
incidents, which Dr. Schwebke then forwarded to the Resource Department.
After receiving Mr. Glover’s written statements, individuals from the Resource
Department interviewed Mr. Turpin, who denied Mr. Glover’s allegations of
sexual harassment. They also interviewed another potential witness to determine
whether she could corroborate a telephone conversation Mr. Glover claimed he
overheard while in Mr. Turpin’s hotel room. The witness stated she did not have
a telephone conversation with Mr. Turpin from his hotel room. The Resource
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Department deemed the investigation “inconclusive” after it conducted these
interviews and reviewed the receipts and expense reports from Mr. Turpin’s hotel
stay. Mr. Turpin was not terminated, but he was prohibited from having any
future verbal or physical contact with Mr. Glover. Mr. Glover admits Mr. Turpin
had no further verbal or physical contact with him after the investigation.
At various times throughout Mr. Glover’s employment with NMC
Homecare, and beginning as early as October 1996, Mr. Glover arrived late to
work and returned late from lunch. In October 1996, Ms. Allen discussed with
Mr. Glover that he was expected to arrive at work at a set time each day. Ms.
Allen noted in Mr. Glover’s annual performance evaluation that his
“dependability” in arriving to work and meetings on time “need[ed]
[i]mprovement.” 4 Mr. Glover’s attendance and punctuality problems did not
abate, and NMC Homecare management repeatedly counseled and warned Mr.
Glover about his excessive tardiness. On April 27, 1998, Ms. Allen issued Mr.
4
“Needs Improvement” is defined as:
Does not fully meet job requirements and/or performance is not consistent.
Improvement is necessary. The level of supervision required is higher than
would be expected for the position. An improvement/correction plan
should be in place. Approximately 5-10% of employees will be rated in this
category.
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Glover a written “Final Warning,” and placed him on a three-month warning, or
probationary, period. She explained the warning was issued because Mr. Glover
used her office without her permission, behaved insubordinately, failed to
perform his work as instructed, violated timecard and attendance policies, and
used the fax machine for non-business purposes. Mr. Glover was on notice that
his employment may be terminated if he failed to meet the terms of the warning
during the three month probationary period, including no unexcused absences or
tardiness.
Three days later, Ms. Allen sent a second written warning to Mr. Glover
cautioning him that he had been late twice since she issued the first “Final
Warning.” She also noted two employees reported that Mr. Glover had removed
and photocopied other employees’ time cards. Ms. Allen concluded she would
give Mr. Glover “one final chance, ... [but] [a]ny further problem of any kind with
[his] performance or conduct will result in [his] immediate termination.” On May
12, 1998, Ms. Allen terminated Mr. Glover because he was “late twice coming
back from lunch in the same pay period after being warned twice in writing.”
Mr. Glover sued NMC Homecare for hostile work environment sexual
harassment, race discrimination, disability discrimination, whistleblower
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retaliatory discharge and intentional infliction of emotional distress. The district
court granted summary judgment in favor of NMC Homecare on all of Mr.
Glover’s claims. Relevant to this appeal, the district court concluded Mr.
Turpin’s alleged sexual misconduct involved isolated incidents, and were
insufficient to support a claim of a hostile work environment. The district court
held Mr. Glover’s claim for race discrimination failed because he did not satisfy
his prima facie case, and, even assuming arguendo that he did make this showing,
Mr. Glover did not establish NMC Homecare’s reasons for eliminating his team
leader position and terminating him were pretextual. Finally, the district court
reasoned summary judgment in favor of NMC Homecare on Mr. Glover’s
whistleblower retaliatory discharge was appropriate, in relevant part, because Mr.
Glover failed to establish a prima facie case of retaliation and show NMC
Homecare’s reasons for discharging him were pretextual.
We review the grant of summary judgment de novo. Steele v. Thiokol
Corp., 241 F.3d 1248, 1252 (10th Cir. 2001). “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.’” Id. (quoting Fed. R. Civ. P. 56(c)). Applying this standard, we view the
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evidence and draw reasonable inferences from that evidence in the light most
favorable to the nonmoving party. Id.
DISCUSSION
Mr. Glover challenges the district court’s grant of summary judgment in
favor of NMC Homecare on the following claims: (1) hostile work environment
caused by sexual harassment in violation of Title VII; (2) race discrimination in
violation of Title VII and Section 1981; and (3) whistleblower retaliatory
discharge in violation of Kansas state law. We address each claim in turn.
A. Hostile Work Environment
Mr. Glover primarily argues the district court erroneously ruled on a basis
not raised in NMC Homecare’s motion and memorandum in support of summary
judgment. The district court ruled there was insufficient evidence establishing a
sexually hostile work environment; NMC Homecare argued there was no basis for
employer liability because it effected prompt remedial measures to end the sexual
harassment. Mr. Glover suggests he was “blind sided” by the district court
because he responded to NMC Homecare’s argument regarding employer liability,
and not the existence of a sexually hostile work environment. In response to Mr.
Glover’s argument, NMC Homecare suggests the district court properly
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considered and held Mr. Glover’s uncontroverted written accounts submitted to
Dr. Schwebke detailing Mr. Turpin’s sexual harassment were insufficient as a
matter of law to support a claim of a sexually hostile work environment. In the
alternative, NMC Homecare argues, as it did in its memorandum in support of
summary judgment, there is no basis for employer liability.
“To survive summary judgment under Title VII, the record must support an
inference of a [sexually] hostile work environment and a basis for employer
liability.” Ford v. West, 222 F.3d 767, 775 (10th Cir. 2000) (emphasis in
original). We resolve this claim based on the absence of employer liability,
thereby making the issue of the presence of a hostile work environment
immaterial to this appeal. 5 See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673
(10th Cir. 1998); see also Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d
1515, 1524 (10th Cir. 1997) (“[W]e are not constrained by the district court’s
conclusions, but may affirm the district court on any legal ground supported by
the record.”).
5
Mr. Glover claims the district court implicitly found NMC Homecare’s summary
judgment argument unpersuasive and unsupported because the district court did not rule
on that ground. Mr. Glover’s argument has no impact on this court, however, because we
review the district court’s grant of summary judgment de novo. Steele, 241 F.3d at 1252.
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An employer may be vicariously or directly liable for a hostile work
environment created by its employee. See Harrison v. Eddy Potash, Inc., 158
F.3d 1371, 1376 (10th Cir. 1998); see also Hollins v. Delta Airlines, 238 F.3d
1255, 1258 (10th Cir. 2001). An employer may be vicariously liable when the
“supervisor’s harassment involves misuse of actual power.” Harrison, 158 F.3d
at 1376 (noting it is the “usual case” that a supervisor misuses actual authority)
(quotation marks and citation omitted). In addition, an employer may be
vicariously liable when the harassing employee acts with apparent authority.
Under this theory, plaintiff must allege “‘there is a false impression that the actor
was a supervisor, when he in fact was not, [and] the victim’s mistaken conclusion
[was] a reasonable one.’” Id. (quoting Burlington Indus. Inc, v. Ellerth, 524 U.S.
742, 759 (1998)) (recognizing liability under apparent authority is “the unusual
case”). Finally, under a negligence theory, an employer may be directly liable if
it fails to remedy or prevent a hostile work environment of which management-
level employees knew or should have known. See Adler, 144 F.3d at 673.
In this instance, Mr. Glover suggests NMC Homecare should be held
vicariously liable for the sexually hostile work environment, pursuant to the
“actual” or “apparent” authority theory. In contrast, NMC Homecare suggests
negligence is the appropriate theory of liability, and, under this theory, Mr.
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Glover did not show NMC Homecare failed to remedy the hostile work
environment. We examine all three bases in order to determine whether NMC
Homecare is liable for a sexually hostile work environment.
1. Vicarious Liability
Mr. Glover argues in his response memorandum to NMC Homecare’s
motion for summary judgment that Mr. Turpin possessed either “real” or
“apparent” supervisory authority. Mr. Glover submits this argument despite a
stipulated fact to the contrary in the pretrial order, which the court issued after the
completion of discovery. The stipulation states, in relevant part, “in August or
September 1997, [NMC Homecare] hired Randy Turpin into the position of
Financial Services Manager, a non-supervisory position, based out of St.
Petersburg, Florida.” (Emphasis added.) Moreover, the pretrial order listed as an
unresolved factual issue, the question of whether NMC Homecare was negligent.
The pretrial order did not identify the nature of Mr. Turpin’s authority as an
unresolved issue.
Under these circumstances, we hold the parties’ factual stipulation is clear
and unambiguous, “is neither improvident nor would it work a manifest injustice,”
and is conclusive that Mr. Turpin lacked actual and apparent supervisory
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authority. 6 L.P.S. v. Lamm, 708 F.2d 537, 539-40 (10th Cir. 1983) (“This court is
... reluctant to relieve parties from the benefits, or detriments, of their
stipulations. We note that it is not our function to review the content of the
stipulations to decide their relative worth.”); see also Fed. R. Civ. P. 16(e).
Accordingly, NMC Homecare is not vicariously liable.
2. Negligence Liability
Having concluded NMC Homecare is not vicariously liable for a sexually
hostile work environment on an actual or apparent authority theory, we consider
whether it is directly liable under a negligence theory. To determine whether an
employer is liable for negligence in allowing employees to engage in sexual
harassment, courts make two inquiries: “first, into the employer’s actual or
constructive knowledge of harassment, and second, into the adequacy of the
employer’s remedial and preventative responses to any actually or constructively
6
We note it is the general rule that courts deem stipulations of fact as conclusive
without additional evidentiary support in the record, “absent circumstances tending to
negate a finding of informed and voluntary assent of a party to the agreement.” In re
Durability Inc., 212 F.3d 551, 555 (10th Cir. 2000) (quotation marks and citation
omitted). Whether relief from the stipulation should be granted or denied depends on
when the relief was requested, and whether there are other overriding rules or policy
considerations. Id. In this instance, Mr. Glover stipulated to the fact in the pretrial order
after the completion of discovery, and failed to seek withdrawal of his stipulation. Cf. id.
at 554-56.
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known harassment.” Adler, 144 F.3d at 673. NMC Homecare’s knowledge is not
at issue in this appeal; instead, we examine the adequacy of its remedial and
preventative responses.
Mr. Glover advocates for the more stringent vicarious liability standard,
and fails to rebut NMC Homecare’s evidence establishing its conduct was not
negligent. See Hollins, 238 F.3d at 1258. From the record before us, it is
uncontroverted that Dr. Schwebke, upon learning of Mr. Glover’s allegations,
notified the Resource Department, collected Mr. Glover’s written accounts and
Mr. Turpin’s expense reports, and forwarded this information to the Resource
Department. The Resource Department then promptly interviewed Mr. Turpin and
another potential witness, who both denied Mr. Glover’s allegations. After
reviewing the information and conducting the interviews, the Resource
Department determined its investigation was inconclusive, but, nevertheless,
prohibited Mr. Turpin from having any further verbal or physical contact with Mr.
Glover. Mr. Glover admits Mr. Turpin had no contact with him after the
investigation. In short, when NMC Homecare learned of Mr. Glover’s harassment
allegations, it immediately investigated and effectively stopped the harassing
conduct. Based on these undisputed facts, we hold Mr. Glover failed to show a
genuine issue of material fact whether NMC Homecare is negligently liable for
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the alleged sexually hostile work environment.
We affirm the district court’s grant of summary judgment in favor of NMC
Homecare on Mr. Glover’s hostile work environment claim albeit for reasons
different than those relied upon by the district court.
B. Racial Discrimination
Mr. Glover relies on indirect evidence to support his claims of
discriminatory demotion and discharge under Title VII and Section 1981.
Pursuant to the McDonnell Douglas framework, the employee “must carry the
initial burden under the statute of establishing a prima face case of racial
discrimination.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226
(10th Cir. 2000) (quotation marks and citation omitted). Once the employee
establishes a prima facie case, “the burden then must shift to the employer to
articulate some legitimate, nondiscriminatory reason for its employment action.”
Id. (quotation marks and citation omitted). If the employer satisfies its burden of
production, the employee must then show that the employer’s justification is
pretextual – i.e., unworthy of belief. Id. at 1226, 1230. “[A] plaintiff’s prima
facie case, combined with sufficient evidence to find that the employer’s asserted
justification is false, may permit the trier of fact to conclude that the employer
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unlawfully discriminated.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 148 (2000).
1. Prima Facie Case
The district court held Mr. Glover failed to establish a prima facie case of
disparate treatment regarding his demotion and termination. To establish a prima
facie case of discriminatory demotion, Mr. Glover must show: (1) “that he was
within a protected group, (2) adversely affected by defendant’s employment
decision, (3) qualified for the position at issue, and (4) that the job from which he
was demoted was not eliminated.” Jones v. Denver Post Corp., 203 F.3d 748, 753
(10th Cir. 2000) (citation omitted). A prima facie case of discriminatory
termination requires Mr. Glover to establish: “(1) he belongs to a protected class;
(2) he was qualified for his job; (3) despite his qualifications, he was discharged;
and (4) the job was not eliminated after his discharge.” Kendrick, 220 F.3d at
1229. 7
Neither the parties nor the district court analyzed Mr. Glover’s prima facie case
7
under these standards. The district court evaluated whether Mr. Glover proved “similarly
situated non-minority employees were treated differently,” and relied on Trujillo v.
University of Colo. Health Sciences Ctr., in which we summarized a district court’s prima
facie requirement. 157 F.3d 1211, 1215 (10th Cir. 1998) (“The district court found that
Plaintiff met his initial burden of establishing a prima facie case of racial discrimination
by showing (1) that he is a member of a racial minority, (2) that he suffered an adverse
employment action, and (3) that similarly situated employees were treated differently.”).
It is doubtful Mr. Glover could establish a prima facie case of discriminatory demotion
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2. Legitimate, Nondiscriminatory Reason for Demotion and Discharge
The burden shifts to NMC Homecare to provide a legitimate,
nondiscriminatory reason for demoting and discharging Mr. Glover. NMC
Homecare explains it demoted Mr. Glover to “Critical Accounts Specialist”
because it reorganized the Kansas Billing Center and eliminated both team
leaders’ positions. NMC Homecare states it discharged Mr. Glover because he
was consistently tardy after he was issued written warnings prohibiting such
behavior. NMC Homecare therefore has articulated legitimate, nondiscriminatory
reasons for demoting and terminating Mr. Glover.
3. Pretext
a. Demotion
Mr. Glover argues he presented sufficient evidence demonstrating NMC
Homecare’s reasons for demoting him were pretextual. According to Mr. Glover,
NMC Homecare’s reorganization was “not justified,” and its rationale for the
restructuring, i.e., to increase the company’s efficiency and collections, is
inconsistent with the fact that Mr. Glover’s billing team had already dramatically
because his team leader job, like Ms. Sarratt’s, was eliminated when the Kansas Billing
Center was reorganized. However, for purposes of this appeal, we focus our analysis and
disposition on Mr. Glover’s argument that NMC Homecare’s reasons for demoting and
terminating are pretextual.
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improved its collections. He points to NMC Homecare’s abandonment of its
restructuring efforts only two months after he was terminated, restoration of a
team leader organization, and decision to promote Ms. Sarratt back to a
supervisory position, as further evidence its decision to reorganize and demote
him are unworthy of credence. Mr. Glover also opines, without factual support,
his new position “would eventually work itself to an end” once he collected all
the delinquent accounts, because NMC Homecare did not offer to retrain him on
the “MESTA” computer billing system. In essence, Mr. Glover insinuates NMC
Homecare’s reorganization rationale is pretextual because the reorganization was
economically unnecessary, quickly abandoned, and masterminded to isolate him
from other employees and eventually eliminate his position.
Mr. Glover’s conjecture the reorganization was not necessary fails to create
a genuine issue of material fact that NMC Homecare’s reasons for reorganizing
and demoting him is pretextual. The record clearly shows NMC Homecare was
undergoing and responding to corporate and management changes, and
restructured its teams several times within a short time period. Mr. Glover’s
opinion and conclusory allegation the reorganization was not economically
“justified” merely attempts to substitute his judgment, based on his limited
knowledge of one billing team’s improved collection efforts, for that of the
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employers. See L&M Enters., Inc. v. BEI Sensors & Sys. Co., 231 F.3d 1284,
1287 (10th Cir. 2000) (“Unsupported conclusory allegations ... do not create a
genuine issue of fact.”).
Mr. Glover’s evidence that his team increased collections also does not
show NMC Homecare’s reasons for restructuring are unworthy of belief. Shortly
after Dr. Schwebke assumed responsibility for the Kansas Billing Center, the
reorganization was implemented to increase the company’s overall efficiency and
profitability. Dr. Schwebke and Ms. Allen believed the “market centered
concept” would improve efficiency because it assigned one team from the Kansas
Billing Center to one particular Renal Support Center, in order to eliminate
previous confusion resulting from “try[ing] to figure out which [billing] system
the patient was on.” Ms. Allen also testified Mr. Glover was transferred to his
new position to collect on difficult Medicare accounts worth over six million
dollars, thereby increasing NMC Homecare’s collections. As such, Mr. Glover’s
evidence casts no doubt on NMC Homecare’s efficiency rationale, and merely
questions the economic wisdom of its reorganization and restoration of a team
leader system eight months later. We consistently recognize, however, courts “are
not in the position of determining whether a business decision was good or bad.
Title VII [and Section 1981 are] not violated by the exercise of erroneous or even
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illogical business judgment.” Sanchez v. Philip Morris Inc., 992 F.2d 244, 247
(10th Cir. 1993) (citations omitted).
Similarly, Mr. Glover’s supposition his job would end once he settled all
the critical accounts, and his evidence that NMC Homecare never offered to
retrain him on the “MESTA” computer billing system fails to evince pretext. Ms.
Allen noted in Mr. Glover’s annual performance evaluation that “[w]hen
[MESTA] classes are available, he will be included in sessions for infusion.” She
testified that seats in the “MESTA” classes were oftentimes unavailable, and
when there were available openings, the Intra-Dialytic Parenteral Nutrition
Division used those seats for the “branch personnel because they had to key
tickets in.” Mr. Glover’s work, unlike the branch personnel, did not require him
to use the “MESTA” billing system. In fact, his new position required him to
settle over six million dollars in uncollected accounts contained exclusively in the
“System 36” billing system. Mr. Glover merely speculates he would not be given
more assignments on the “System 36” billing system, or retrained on another
billing system in the future. See Branson v. Price River Coal Co., 853 F.2d 768,
772 (10th Cir. 1988) (“[M]ere conjecture that [the] employer’s explanation is
pretext ... is an insufficient basis for denial of summary judgment.”). Workforce
reorganizations implemented for the purpose of improving profits and efficiency,
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and the training appropriate for an employee to achieve such results, are within
the province of the employer’s judgment. This court will not second guess such
judgment. See Kendrick, 220 F.3d at 1233.
b. Termination
Mr. Glover also claims he provided sufficient evidence showing NMC
Homecare’s reasons for terminating him are pretextual. Mr. Glover raises two
arguments: first, NMC Homecare should not monitor his tardiness, nor require
him to use a timecard, because he is a salaried employee who performs his work
and receives no overtime compensation; and second, he was disparately treated
because he was terminated for tardiness, but Ms. Sarratt, who was also frequently
tardy, was not discharged.
(i) Salaried Employee
Mr. Glover asserts NMC Homecare should neither be concerned with his
tardiness, nor require him to use a timecard, because he is a salaried, non-hourly
employee who does not receive overtime. Dr. Schwebke explained, however, that
NMC Homecare experienced ongoing problems with salaried employees arriving
to work late, leaving early, and taking extended lunches. NMC Homecare
believed this behavior by salaried employees “set a bad example.” As a result,
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NMC Homecare expected all employees, except clinical reimbursement personnel,
to time in and out. NMC Homecare presented overwhelming evidence its
requirement that salaried employees use time cards and not be late was a
legitimate business decision. Mr. Glover merely questions the sagacity of NMC
Homecare’s business practice. We conclude it is the employers’ prerogative to
deem punctuality imperative to business operations and to require employees,
including salaried employees, to use time cards. This court is ill-suited to
question such business judgment. Kendrick, 220 F.3d at 1233.
(ii) Disparate Treatment
Mr. Glover argues he was treated differently than Ms. Sarratt, who,
according to Mr. Glover, was also repeatedly tardy but was not terminated. His
only evidence of disparate treatment is an affidavit signed by Ms. Berg, a hourly,
nonsupervisory employee working on Mr. Glover’s billing team. 8 Ms. Berg’s
affidavit states, in relevant part:
[D]uring the same period of time that Leroy Glover was being
reprimanded by NMC Homecare for excessive tardiness, Sheila
Sarratt, a similarly situated white employee, was equally, if not more
8
The district court noted Mr. Glover failed to establish Jammie Berg was
competent to testify about the comparative attendance and tardiness of Mr. Glover and
Ms. Sarratt, and their respective discipline. Ms. Allen, in an affidavit, states Ms. Berg
lacked responsibility for and authority to monitor the attendance of other employees.
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tardy, or late, with regard to her coming to and leaving work, as well
as leaving and returning from lunch. However, to affiant’s
knowledge, Sheila Sarratt was not reprimanded on the same basis as
Leroy Glover, and Sheila Sarratt certainly was not terminated ....
That after Leroy Glover was terminated from his employment with
NMC Homecare in May, 1998, the excessive tardiness of Sheila
Sarratt became even greater than it was during the time period that
Leroy Glover was still employed at NMC Homecare.... To my
knowledge, she was not reprimanded by Judy Allen.
It is undisputed Ms. Berg was not responsible for disciplining employees and
lacked access to the disciplinary records of NMC Homecare’s employees.
An employee may “show pretext on a theory of disparate treatment by
providing evidence that he was treated differently from other similarly situated,
nonprotected employees who violated work rules of comparable seriousness.”
Kendrick, 220 F.3d at 1232 (emphasis added). “An employee is similarly situated
to the plaintiff if the employee deals with the same supervisor and is subject to
the same standards governing performance evaluation and discipline.” Id.
(quotation marks and citation omitted). In determining whether an employee is
similarly situated to the plaintiff, “[a] court should also compare the relevant
employment circumstances, such as work history and company policies,
applicable to the plaintiff and the intended comparable employees.” Id. at 1232
(quotation marks and citation omitted). Trivial or accidental differences in
treatment, or those explained by a nondiscriminatory motive, do not show the
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employer’s reasons for the adverse employment action are pretextual. Id.
Although Mr. Glover and Ms. Sarratt were tardy and each received a “Final
Warning Notice,” their employment circumstances are distinguishable in
significant respects. See id. at 1233 (noting the persuasive value of the
comparative evidence is diminished when the employer takes relatively severe
disciplinary action against both employees). In Mr. Glover’s case, three days
after he received his “Final Warning Notice,” Ms. Allen sent him a second written
warning explaining that he had already been late two times since being placed on
probation, and other employees saw him remove and photocopy their time cards.
Less than two weeks after Mr. Glover received his second written warning, he
was late twice returning from lunch. Ms. Sarratt’s breach of NMC Homecare’s
tardiness rule is substantially different from Mr. Glover’s transgressions. There is
no evidence indicating Ms. Sarratt violated the terms of her “Final Warning,” or
was issued further written warnings. 9 In fact, Dr. Schwebke testified that after
Ms. Sarratt received her warning, Ms. Sarratt “shaped up” and no longer had
tardiness or absentee problems. Accordingly, Ms. Sarratt and Mr. Glover did not
breach work rules of “comparable seriousness” because Ms. Sarratt’s tardiness
9
Assuming without deciding Ms. Berg’s affidavit is admissible, she does not
speak to whether Ms. Sarratt’s tardiness continued after Ms. Sarratt received her written
final warning.
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ceased after receiving her warning, while Mr. Glover received multiple written
warnings, violated the terms of his probation period, and, despite these warnings,
returned late to work two times within a short time frame. Id. at 1233. “A
company must be allowed to exercise its judgment in determining how severely it
will discipline an employee for different types of conduct.” Id. We conclude Mr.
Glover’s claim of disparate treatment fails to create a genuine issue of material
fact that NMC Homecare’s reason for terminating him is unworthy of belief.
Even viewing the evidence and construing reasonable inferences in the light
most favorable to Mr. Glover, we hold Mr. Glover failed to show a genuine issue
of material fact that NMC Homecare’s reasons for demoting and terminating him
are pretextual. We therefore affirm the district court’s grant of summary
judgment in favor of NMC Homecare on Mr. Glover’s Title VII and Section 1981
race discrimination claims.
C. Whistleblower Retaliatory Discharge
Mr. Glover alleges he was discharged in retaliation for his July report of
problems with the Charlotte, North Carolina Renal Support Center’s completion
of certificates of medical necessity. To show a prima facie case of
whistleblowing under Kansas state law, an employee bears the burden of proving:
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[(1)] A reasonably prudent person would have concluded the
employee’s co-worker or employer was engaged in activities in
violation of rules, regulations, or the law pertaining to public health,
safety, and the general welfare; [(2)] the employer had knowledge of
the employee’s reporting of such violation prior to discharge of the
employee; and [(3)] the employee was discharged in retaliation for
making the report.
Palmer v. Brown, 752 P.2d 685, 690 (Kan. 1988). To recover for retaliatory
discharge, an employee must prove that the discharge was “based on” the
employer’s intent to retaliate, but employees are not obligated to show retaliation
was the employer’s “sole motive” for the termination. See Brown v. United
Methodist Homes for the Aged, 815 P.2d 72, 88 (Kan. 1991) (worker’s
compensation claim); see also Lierz v. Coca Cola Enters., Inc., 36 F. Supp. 2d
1295, 1301 (D. Kan. 1999) (whistleblower claim); Ortega v. IBP, Inc., 874 P.2d
1188, 1194 (Kan. 1994) (“The basis of both workers compensation retaliation
cases and whistle-blowing retaliation cases is the employer’s bad motive in
discharging the employee.”). An employee must prove his whistleblowing claim
“by a preponderance of the evidence ... [that is] clear and convincing in nature.”
Lytle v. City of Haysville, 138 F.3d 857, 869 (10th Cir. 1998) (noting the Kansas
Supreme Court stated, “[w]e find no justification for applying different standards
of proof in whistle-blowing and workers compensation retaliatory discharge
cases”) (quotation marks and citation omitted). Evidence “is clear if it is certain,
unambiguous, and plain to the understanding. It is convincing if it is reasonable
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and persuasive enough to cause the trier of facts to believe it.” Id.
Mr. Glover claims NMC Homecare began retaliating against him in a series
of adverse events culminating in his discharge because he made his July report to
high ranking management employees at the Kansas Billing Center. We presume,
although it is unclear from his appellate brief and his memorandum in response to
NMC Homecare’s motion for summary judgment, Mr. Glover believes the
following evidence establishes his prima facie case of whistleblower retaliatory
discharge: (1) he was “admonished” by Ms. Allen in his annual review for failing
to obey the chain of command when he reported the potential problem with the
certificate of medical necessity paperwork to managers outside his department;
(2) a co-worker accused him of sexual harassment, and Ms. Allen was involved
with the investigation of those allegations; (3) the Kansas Billing Center was
reorganized and he was transferred to a new position; (4) Ms. Allen continued to
reprimand and issue written warnings to him due to his tardiness; and (5) he was
discharged.
Mr. Glover’s annual performance evaluation is far from “clear and
convincing” evidence that his termination eight months later, and ten months after
his July report, was in retaliation for apprizing NMC Homecare management of
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the paperwork problem in the Charlotte, North Carolina Renal Support Center.
See Lytle, 138 F.3d at 869. Notably, the evaluation contained absolutely no
criticism of the contents of Mr. Glover’s disclosure, or for bringing the problem
to the company’s attention. Ms. Allen included one comment informing him that
he needs to be cognizant of his division’s “chain of command,” but rated his
overall “communication skills” as commendable. 10 Indeed, the evaluation form
mandated Ms. Allen to consider whether Mr. Glover “[c]ommunicated
information to appropriate people in a timely basis.” (Emphasis added.) The
evidence is not of a clear and convincing nature in Mr. Glover’s favor because we
can only speculate from his favorable evaluation what, if any, impact his July
report had on his termination.
Mr. Glover’s additional evidence also fails to establish his discharge was in
10
Ms. Allen rated Mr. Glover’s “communication skills” as “meets requirements.”
“Meets requirements” is defined as:
Consistently meets and may occasionally exceed requirements. Levels of
quality, quantity, job knowledge and overall performance consistently meet
expectations to perform the job. Minimal supervision is required. In a high
performance company such as ours it is expected that the vast majority of
employees, 75-80%, will achieve this commendable performance level.
(Emphasis added.) Mr. Glover stipulated that he reported the paperwork problem to
individuals in another Division of the Kansas Billing Center.
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retaliation for making his July report to NMC Homecare management. The
precise evidence Mr. Glover argues shows retaliation actually cuts against his
claim. Ms. Allen’s involvement in a co-worker’s claim of sexual harassment
against Mr. Glover does not suggest Ms. Allen retaliated against Mr. Glover for
his July report. Ms. Allen merely investigated the claim, and, in fact, deemed the
investigation “inconclusive.” Furthermore, the reorganization of the entire
Kansas Billing Center and the warnings he received for his undisputed tardiness
fail to show, in a clear and convincing nature, that his termination was in any way
connected to, let alone in retaliation for his July report. Accordingly, we hold
Mr. Glover failed to establish a prima facie case of whistleblower retaliatory
discharge under Kansas state law.
In sum, we AFFIRM the district court’s grant of summary judgment in
favor of NMC Homecare on Mr. Glover’s claims of hostile work environment,
racial discrimination and whistleblower retaliatory discharge.
Entered by the Court:
WADE BRORBY
United States Senior Circuit Judge
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Glover v. NMC Homecare, Inc.
Court: Court of Appeals for the Tenth Circuit
Date filed: 2001-07-18
Citations: 13 F. App'x 896
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