F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
August 8, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
LINDA HAYNES,
Plaintiff-Appellant,
v. No. 04-1307
LEV EL 3 COM M UNICA TIONS,
LLC,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 02-N-1694 (M JW ))
Submitted on the briefs:
John R. Olsen of Olsen & Brown, L.L.C., Niwot, Colorado, for Plaintiff-
Appellant.
Lisa Hogan, Richard P. Barkley, M eghan W . M artinez of Brownstein Hyatt &
Farber, P.C., Denver, Colorado, for Defendant-Appellee.
Before TACH A, Chief Judge, BA LD OC K and O’BRIEN, Circuit Judges.
O’BRIEN, Circuit Judge.
Linda Haynes filed suit against her employer, Level 3 Communications
(Level 3), following the termination of her employment as part of a reduction in
force (RIF). She alleged violations of the Americans with Disabilities Act
(ADA), 42 U.S.C. §§ 12101-12213, Title VII of the Civil Rights Act (sex
discrimination), 42 U.S.C. § 2000e, and the Age Discrimination in Employment
Act (ADEA), 29 U.S.C. § 621. She also asserted a breach of contract claim. The
district court granted summary judgment in favor of Level 3, concluding Haynes
failed to timely file her ADA, Title VII and ADEA claims and declined to
exercise supplemental jurisdiction over her breach of contract claim. W e exercise
jurisdiction under 28 U.S.C. § 1291 and AFFIRM .
Standard of Review
“W e review the district court’s grant of summary judgment de novo,
applying the same legal standard used by the district court.” Davidson v. Am.
Online, Inc., 337 F.3d 1179, 1182 (10th Cir. 2003) (quotation omitted). Summary
judgment is appropriate if the evidence presented by the parties demonstrates
“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.” F ED . R. C IV . P. 56(c). An issue of
fact is “genuine” if the evidence allows a reasonable jury to resolve the issue
either way and is “material” when “it is essential to the proper disposition of the
claim.” Bennett v. Quark, Inc., 258 F.3d 1220, 1224 (10th Cir. 2001).
“The party moving for summary judgment bears the initial burden of
demonstrating the absence of a genuine issue of material fact.” Id. (citations
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omitted). If the movant does not bear the burden of persuasion at trial, it “may
make its prima facie demonstration simply by pointing out to the court a lack of
evidence for the nonmovant on an essential element of the nonmovant's claim.”
Id. (citations omitted). If the moving party properly supports its motion for
summary judgment, “the burden shifts to the nonmoving party to go beyond the
pleadings and set forth specific facts from which a reasonable jury could find in
favor of the nonmoving party.” Id. At all times, the record, and all reasonable
inferences drawn from it, are considered in the light most favorable to the party
opposing the motion. Id. W ith these standards in mind, we set forth the facts in
the light most favorable to H aynes.
Background
After eight and a half years as a top sales person at her former employer
IXC, Haynes followed her boss, David W eigand, to work at Level 3 in M arch
1999. Her title was “carrier sales manager” in the San Francisco office. 1
Initially, she worked directly for W eigand, but following his promotion, Paul
Larson became her supervisor. At various times during Haynes’ tenure at Level
3, Larson also supervised two other saleswomen, M ary Vargo and Cari Burich
(located in the Los Angeles office), and two salesmen, Steve Stone and Shane
Quivey.
1
During the relevant time period, Level 3 was divided into three product
sales groups — carrier, corporate and internet.
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Shortly after Larson became the carrier products unit supervisor, he began
to recruit Quivey, a thirty-one-year-old male w orking in the internet products
unit. W hen Quivey came to work in the carrier products unit, Larson treated
Quivey and Stone with a marked preference compared with the saleswomen. 2
Haynes alleges Quivey acted inappropriately and did not follow company
procedures, yet Larson protected him. Haynes also observed that Larson was
gradually taking customer accounts away from Vargo and giving them to Quivey.
As a result, Vargo was unable to meet her sales quota. Vargo complained about
the situation to Larson and W iegand, pursuant to Level 3's “open door policy.” 3
Shortly thereafter, Larson gave Vargo a poor performance evaluation and placed
her on a “performance [improvement] plan (PIP).” (R. Vol. III at 413.) In
February 2000, Vargo resigned.
W hile these events w ere taking place, Larson also began taking accounts
away from Haynes and giving them to Quivey. Although Quivey was to give
some of his accounts to Haynes in trade, he never did. Haynes claims Quivey
also received favored treatment in the form of assignments to the best leads and
better pricing for his clients.
2
Unfortunately, the exact dates of many of the allegations are not in the
record. It appears Larson became Haynes’ supervisor in June or July 1999 and
Quivey joined the carrier products unit in August or September 1999.
3
Level 3 had a written “open door policy” whereby any employee could
speak about any topic without fear of retaliation.
-4-
Beginning in early 2000, Haynes’ health began to decline. Sometime in
M ay 2000, Larson demanded she come to work against her doctor’s advice, only
to have her attend a meeting at which she was directed to give Quivey one of her
most lucrative accounts. According to Haynes, this w as a “watershed” moment.
Haynes confronted Larson and accused him of discriminating against her on the
basis of her age and sex. As Haynes testified, “I realized that it was going to be a
turning point, that [Larson] knew that I knew what he was doing.” (R. Vol. III at
239.) Thereafter, Larson began to criticize Haynes to customers and
management, harming her relationships with her customers and M ike Lanza,
Larson’s direct supervisor. On M ay 18 or 19, 2000, Haynes complained to Lanza
that Larson was discriminating against her by giving the benefits of her work to
someone else.
Eventually, due to Larson’s alleged discriminatory management, Haynes
was unable to meet her sales quota. Larson informally counseled Haynes several
times regarding her sales performance throughout 2000. By August 2000, Haynes
met only a small percentage of her sales quota. 4 In early to mid- September,
Larson met with Haynes and again informally counseled her on her performance.
On September 18, 2000, Haynes e-mailed Scott Roberts, Senior Vice-
4
W hile Level 3 contends she met only seven percent of her sales quota,
Haynes disputes this number, alleging the actual percentage was approximately
thirteen.
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President of Sales and M arketing, and asked to exercise the open door policy. 5 In
the e-mail, Haynes complained of Larson’s m anagement style and his failure to
support her. On September 19, 2000, Haynes sent a second e-mail to Roberts
explaining her position regarding Larson’s lack of management skills in more
detail and requesting help in resolving the problem. She complained Larson’s
lack of support caused customers to get angry with her and, in turn, caused Larson
to reassign her accounts to Quivey. She also alleged Larson had been unavailable
to help close deals, fell asleep during customer calls and had told her not to
discuss her problems with upper management. Several e-mails indicate Haynes
continued to ask Roberts to assist her in receiving support and it appears R oberts
responded appropriately.
On October 3, 2000, Larson issued Haynes a formal, written warning noting
she had reached only fifty percent of her year-to-date quota. On October 24,
2000, Roberts e-mailed Haynes to inform her he had asked Randy Hester,
Director of Human Resources, to contact her regarding her request for an open
door meeting. On October 26, 2000, Haynes responded with another request for a
meeting. On November 1, 2000, Haynes and Hester talked via telephone. In
preparation for the meeting, Haynes forwarded the September 19, 2000 e-mail she
had sent to Roberts detailing her complaints. Following the two-hour call, Hester
5
Haynes testified she had spoken to Roberts frequently regarding Larson’s
treatment of older women prior to the September e-mail.
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telephoned Lanza and Larson to find out why Haynes’ accounts had been moved.
He was told some accounts were moved by upper management and others at the
request of the customers. Hester did not investigate further. 6
The next day, Lanza sent an e-mail to his staff, including Larson. The e-
mail stated in relevant part:
[N]o one is to take ANY issue to my superiors without first bringing
it to my attention. I want to be very clear about this. Nothing goes
over my head unless I have been made aware of it and AGREE that it
should be escalated. If there is a part of this message that is unclear
call me and I will be happy to clear up any confusion. I want a
response back from each of you stating you have read this and
understand it.
(Vol. III at 361.) Larson forwarded Lanza’s message to Haynes, Burich and
Quivey with his own admonishment, “Please make sure everything goes through
M ike and I before it goes any higher.” (Id.)
Eleven days later, on November 13, 2000, Larson placed Haynes on a PIP
he devised with Hester’s assistance. The PIP listed five objectives, including a
requirement that Haynes “[m]eet or exceed 100% of [her] monthly sales quota . . .
for December ’00 and January ’01.” (R . Vol. III at 363.) It also stated, “[i]t is
crucial you understand how important your required improvement is, since
6
Level 3 vehemently disputes many of the facts alleged by Haynes.
Roberts and Hester testified they were never aware that Haynes was complaining
about sexual discrimination, rather they understood it as a complaint about her
manager not giving her support and taking away her accounts. Haynes insists she
told them both that the discrimination was based on her age and sex and informed
them two other women had also been victims of such discrimination.
-7-
continued unsatisfactory sales performance will result in further disciplinary
action.” (V ol. III at 363.) Finally, the PIP informed Haynes if she discussed its
terms and conditions w ith any other Level 3 employees, she was subject to
immediate termination.
Nine days after Haynes was placed on the PIP, her physician informed
Level 3 she was placing Haynes on a two week medical disability for consultation
with specialists. Five days later, Haynes took a medical leave of absence. The
first twelve weeks of leave were taken pursuant to the Family M edical Leave Act.
After that time, Haynes took indefinite leave under Level 3's medical leave
policy. She received short-term disability payments from Level 3's third-party
insurance carrier through February 26, 2001. However, the third-party insurance
carrier denied her request for long-term disability payments. It is undisputed
Level 3 had no control or influence over this decision.
Haynes remained on medical leave until Level 3 terminated her
employment on June 18, 2001, as part of a RIF. Larson and Lanza’s employment,
among others, was also terminated in the same RIF. Roberts made the decisions
as to which employees would be terminated. One of the criteria for termination
under the RIF was an employee’s placement on a PIP.
Haynes filed a charge of discrimination with the Equal Employment
Opportunity Commission (EEOC) on October 11, 2001. At her request, the
EEOC issued a Notice of Right to Sue letter on June 27, 2002. On September 4,
-8-
2002, Haynes filed this action against Level 3 alleging she was terminated in
violation of the ADA, Title VII and the ADEA. She also asserted a breach of
contract claim. Following discovery, Level 3 moved for summary judgment on
all of Haynes’ claims. After supplemental briefing, the district court granted
summary judgment in favor of Level 3. In so doing, it construed H aynes’
complaint as incorporating two separate bases for her claims — her termination
and her placement on the PIP. The district court denied relief, concluding: (1) the
termination of Haynes’ employment was not discriminatory because it was
premised on her status under the PIP and it is uncontested that all employees
under a PIP were placed on the list to be considered for the RIF, (2) the last
action prior to the RIF was placing her on a PIP, (3) the PIP was an adverse
employment action, (4) but it, and all other alleged discriminatory acts, were
outside of the required 300-day time period for filing an administrative claim.
After disposing of Haynes’ federal claims, the district court declined to exercise
supplemental jurisdiction over her breach of contract claim. 7 This appeal
followed.
Discussion
All three of H aynes’ causes of action, Title VII, ADEA and ADA, require
that she file a timely administrative claim within 300 days of the challenged
7
On appeal, Haynes does not challenge the district court’s refusal to
exercise supplemental jurisdiction.
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discriminatory action. Haynes filed her EEOC charge on October 11, 2001.
Therefore, the discriminatory actions on which she bases her claims must have
occurred on or after December 15, 2000. 42 U.S.C. §§ 12117(a); 2000e-5;
Duncan v. M anager, Dep’t. of Safety, City & County of Denver, 397 F.3d 1300,
1308 (10th Cir. 2005) (Title VII); Davidson, 337 F.3d at 1183 (ADA); Beaird v.
Seagate Tech., Inc., 145 F.3d 1159, 1174 (10th Cir. 1998) (ADEA). G enerally, a
cause of action accrues “on the date the employee is notified of an adverse
employment decision by the employer.” Davidson, 337 F.3d at 1187. However,
not every perceived indignity will rise to the level of an adverse employment
action triggering the 300-day limitations period. A “mere inconvenience or
alteration of job responsibilities” will not do. Dick v. Phone Directories Co.,
Inc., 397 F.3d 1256, 1268 (10th Cir. 2005) (quotation omitted). Only “acts that
constitute 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” will rise to the level of an
adverse employment action. Id. (quotation omitted). Nonetheless, “we liberally
interpret” whether an adverse employment action exists “and take a case-by-case
approach, examining the unique factors relevant to the situation at hand.” Id.
(quotation omitted.)
W e begin by identifying the allegations that constitute an adverse
employment action because such “discrete discriminatory acts are not actionable
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if time barred, even when they are related to acts alleged in timely filed charges.
Each discrete discriminatory act starts a new [300-day] clock for filing charges
alleging that act.” Nat’l R.R. Passenger Corp. v. M organ, 536 U.S. 101, 113
(2002).
The very precision of this requirement — not a year, not six months,
not the state law statute of limitations for comparable causes of
action — bespeaks Congress’s concern. Title VII is not intended to
allow employees to dredge up old grievances; they must promptly
report and take action on discriminatory acts when they occur.
Unlitigated bygones are bygones.
Duncan, 397 F.3d at 1308.
The crux of Haynes’ argument on appeal is that the district court erred in
concluding the PIP w as an adverse employment action that occurred outside the
time limitation. She maintains the only adverse employment action triggering the
300-day statutory limitations period occurred on the date of her termination. In
any event, Haynes argues that under M organ, even if the PIP is an adverse
employment action, her allegations surrounding the PIP and all other previous
discriminatory actions are relevant as a backdrop for the ultimate determination as
to whether the termination of her employment was discriminatory and the R IF
merely a pretext. 8
8
Haynes raises numerous arguments on appeal that were not presented to
the district court. A significant portion of her O pening Brief and Reply Brief is
directed to her claim that her PIP w as limited to a two-month period (i.e., until
January 2001). She reasons that, because the PIP w as limited to two months, she
was subject to additional adverse employment actions by (1) either being placed
on a new PIP after January 2001, (2) extending the time frame for the PIP w ithout
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Haynes is correct that the statute does not “bar an employee from using
prior acts as background evidence in support of a timely claim.” M organ, 536
U.S. at 113 (emphasis added). Nonetheless,
such background evidence cannot suffice [to establish a timely claim]
where [there is] no evidence of discriminatory purpose other than (at
most) [a] discrete time-barred decision . . . . To decide otherwise
would completely undo M organ’s insistence that each discrete
discriminatory act starts a new clock for filing charges alleging that
act.
Law v. Continental Airlines, Corp., Inc., 399 F.3d 330, 334 (D .C. Cir. 2005).
Therefore, as our first step, we will examine Level 3’s discriminatory acts as
alleged by Haynes prior to her termination to determine whether any constitute
time-barred discrete adverse employment actions.
her knowledge or (3) being terminated when she was not actually on a PIP.
Haynes also insists the district court erroneously characterized the PIP as
automatically causing her termination. She now insists it was only one reason she
was included in the RIF. None of these arguments were raised below. Indeed,
Haynes’ theory below was simply and repeatedly based on a simple sequence of
events:
In sum, plaintiff was laid off because she was put at the top of the
layoff list which, in turn, was because she had been placed on a
corrective action plan, which, in turn, was because she complained to
human resources about discrimination and mistreatment under the
‘open door’ policy.
(R. Vol. II at 193). W hile H aynes’ new theories may seem more attractive at this
stage of the proceedings, we will not consider them on appeal. Davidson, 337
F.3d 1179, 1188 (10th Cir. 2003); Gorm an v. Carpenters’ & M illwrights’ H ealth
Benefit Trust, 410 F.3d 1194, 1202 (10th Cir. 2005).
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A. Discriminatory Acts Prior to Placement on the PIP
Haynes’ allegations of Larson’s actions prior to placement on the PIP may
be parsed into three categories: (1) a request to come to work while ill; (2) lack of
managerial support as compared with that provided to the male employees; and
(3) reassignment of her accounts. As to the first two categories, we agree with
Haynes that they are not the type of actions that would begin the statutory
limitations period since she has not alleged, and the record does not reflect, these
actions were anything but an inconvenience.
Larson’s repeated removal of Haynes’ accounts, however, paint a different
picture. As Haynes repeatedly stated, these actions directly caused a significant
change in her employment status and benefits. According to H aynes, Larson’s
discriminatory actions caused Quivey to receive the rewards of her work and,
conversely, she was unable to meet her sales quotas. Although she did not
identify the precise accounts unfairly removed, the dates they were transferred to
Quivey or the amount of income she lost as a result of the transfers, Haynes
clearly knew the discriminatory nature of Larson’s actions and the resulting
detrimental effect to her income. 9 Indeed, in a November 7, 2000 e-mail to
9
The record includes several e-mails dated August 13, 2000, November 7,
2000, and September 17, 2000, in which Haynes complains of the transfer of her
accounts to Quivey. In addition, Haynes also testified that the removal of an
account in M ay 2000 was a “watershed” moment. Therefore, while it is not clear
exactly when her accounts were transferred, the record indicates such transfers
began, at the latest, in M ay 2000 and ceased in November 2000.
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Larson, Haynes stated, “this has impacted my sales output tremendously, as the
work I’ve done is not reflected in my base and someone else is now getting paid
on much of my work.” (R. Vol. III at 333.) Because each removal of an account
constituted an actionable adverse employment action, Haynes w as required to file
an administrative charge within 300 days of each removal. She did not do so.
Thus, any claim based on the removal of her accounts is time-barred.
B. Placement on the PIP
In essence, the district court concluded Haynes’ placement on a PIP w as
per se an adverse employment action because it constituted a disciplinary action
in the form of a written warning. M ost courts that have considered whether a PIP,
standing alone, is an adverse employment action have found it is not. Givens v.
Cingular Wireless, 396 F.3d 998, 998 (8th Cir. 2005) (“[P]lacing [an employee]
on a ‘performance improvement plan,’ without more, did not constitute an adverse
employment action.”); Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003)
(“[F]ormal criticism or poor performance evaluations are not necessarily adverse
actions and they should not be considered such if they did not affect the
employee's grade or salary.”); Agnew v. BASF Corp., 286 F.3d 307, 310 (6th Cir.
2002) (the possibility of termination mentioned in the plaintiff’s PIP “was
contingent on future developments, rather than being a present plan or decision”
and therefore did not constitute an adverse employment action supporting a
constructive discharge claim.).
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Although the district court recognized the existence of this non-binding
precedent, it determined the Tenth Circuit had reached the opposite conclusion.
Relying on Hysten v. Burlington N. & Santa Fe Railway Company, 296 F.3d
1177, 1183 (10th Cir. 2002), and Roberts v. Roadway Express, Inc., 149 F.3d
1098, 1104 (10th Cir. 1998), it held “[Haynes] could have filed a charge of
discrimination immediately after being placed on the PIP because a written
warning in the Tenth Circuit constitutes an adverse employment action.” (R . Vol.
IV at 61.) W e disagree with the district court’s interpretation of our precedent
and expressly join our sister circuits in holding a PIP, standing alone, is not an
adverse employment action.
A written warning may be an adverse employment action only if it effects a
significant change in the plaintiff’s employment status. For example, in Roberts,
the defendant had peppered plaintiff’s file with “twenty warning letters,” and the
record demonstrated “that the more w arnings an employee received, the more
likely he or she was to be terminated for a further infraction.” 149 F.3d at 1104. 10
Thus, the effect on the plaintiff’s employment status was an immediate placement
in an at-risk status. The facts in this case do not demonstrate that Haynes’
placement on the PIP in November had any immediate effect on her employment
10
The facts in Hysten are not as clear. It appears the plaintiff’s retaliation
claim relied on a written Level 1 reprimand issued approximately two weeks after
he filed a discrimination suit. The effect of the reprimand is not, however, set
forth in the opinion. W e can assume the record indicated an immediate adverse
consequence as a result.
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status. She w as not demoted, her pay did not change and her responsibilities were
not significantly modified. Instead, she was presented with clear goals to achieve
her continued employment.
She also concedes no one at Level 3 anticipated the economic downturn
that would result in the RIF seven months later. Further, no one could have
predicted that Haynes would be unable to meet the PIP due to her subsequent
unforeseen medical leave. Therefore, her placement on the PIP had no apparent
tangible effects other than the requirement she meet her sales quota and a plan to
assist her in her efforts. Consequently, Haynes’ placement on a PIP w as not an
adverse employment action. See Dick, 397 F.3d at 1270 (holding a “single
write-up is not an adverse employment action.”).
C. Discriminatory Discharge
There is no question that Haynes’ termination from Level 3 is an adverse
employment action that occurred within the 300-day statutory time period.
However, the district court determined Haynes failed to present evidence of a
discriminatory intent, 11 i.e., that her inclusion in the RIF w as based on her age,
11
To prevail on a claim of age discrimination in the RIF context, a
claimant must show: “(1) the claimant is within the protected age group; (2) he or
she was doing satisfactory work; (3) the claimant was discharged despite the
adequacy of his or her work; and (4) there is some evidence the employer
intended to discriminate against the claimant in reaching its RIF decision.” Stone
v. Autoliv ASP, Inc., 210 F.3d 1132, 1137 (10th Cir. 2000). “Under the ADA, a
plaintiff must show (1) that he is disabled within the meaning of the ADA; (2)
that he is qualified, with or without reasonable accommodation, to perform the
essential functions of the job held or desired; and (3) that he was discriminated
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disability or sex, respectively, because her termination was pursuant to a neutral
policy. W e agree.
In United Air Lines, Inc. v. Evans, Evans, a flight attendant, was forced to
resign in 1968 due to United’s policy of prohibiting married flight attendants.
431 U.S. 553, 554 (1997). In 1971, United’s policy was found to be unlawful.
Id. In 1972, Evans was rehired but was denied seniority credit for her past
service. Id. at 554. She filed suit alleging the discriminatory policy forcing her
to resign was the direct cause of her inability receive the benefits attendant to her
seniority in her current position. Id. The question before the Court was whether
her failure to file a charge within 90 days of her 1968 separation caused her claim
to be time barred and foreclosed Title VII relief. Id. at 556.
Evans argued, inter alia, that “the seniority system [gave] present effect to
the past illegal [policy] and therefore perpetuate[d] the consequences of forbidden
discrimination.” Id. at 557. The Court rejected this argument because the policy
to refuse seniority to rehired employees applied equally to those who had
terminated their employment because of discriminatory and non-discriminatory
against because of his disability.” Davidson, 373 F.3d at 1188 (quotations
omitted). To prevail on a claim alleging termination under Title VII, the plaintiff
“must first establish a prima facie case, demonstrating that: (1) he was a member
of a protected class; (2) he was qualified and satisfactorily performing his job;
and (3) he was terminated under circumstances giving rise to an inference of
discrimination.” Salguero v. City of Clovis, 366 F.3d 1168, 1175 (10th Cir.
2004).
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practices, notwithstanding their sex. Id. at 558. The Court recognized “the
seniority system [gave] present effect to a past act of discrimination.” Id.
Nonetheless, “United was entitled to treat that past act as lawful” when Evans
failed to file a timely charge of discrimination. Id. The Court explained that the
past act “may constitute relevant background evidence in a proceeding in which
the status of a current practice is at issue, but separately considered, it is merely
an unfortunate event in history which has no present legal consequences.” Id.
Because the present (timely) employment decision was “neutral in its operation,”
the past discriminatory policy could not be the basis of her claim. Id.; see also
Delaware State College v. Ricks, 449 U.S. 250, 258 (1980) (Plaintiff neither
alleged nor proved “that the manner in which his employment was terminated
differed discriminatorily from the manner in which the College terminated other
professors who also had been denied tenure.”).
Similarly, in Jorge v. Rumsfeld, the plaintiff, Jorge, was employed by the
Army and Air Force Exchange Services in the commissary program for military
personnel. 404 F.3d 556, 559 (1st Cir. 2005). In 1979, she became the retail
manager of a Base store, Toyland, and remained there for almost tw enty years.
At the age of fifty-one, she elected to make a lateral transfer to another store on
the Base, where she was a model employee until 1998. However, the assignment
of a new supervisor caused Jorge to complain about the supervisor’s practices, to
which the supervisor allegedly responded with derogatory comments about her
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age. W hile Jorge was on vacation, the supervisor unilaterally transferred her back
to Toyland, filled her position with a younger, less experienced male and did not
offer an explanation upon her return. Id. Jorge refused to report to Toyland,
using all her leave and sick time resisting the transfer. Id. at 560. Eventually,
she was given the option of either reporting to Toyland or taking early retirement.
She submitted a notice of involuntary early retirement and filed suit alleging
constructive discharge in violation of the ADEA and Title VII. Id.
The court determined Jorge’s claim accrued at the time she was transferred,
not at her resignation, even though her transfer was not an adverse employment
action. 12 Id. at 562. The court reasoned:
Jorge’s troubles evidently stemmed from the sequence of events
exemplifying the harassing behavior of her new supervisor. That
sequence of events began in 1998 and culminated in the order
transferring her to Toyland. Jorge refused to accept that transfer,
even though it entailed no loss of pay, benefits, status, or the like . .
. . By all accounts, it was the refusal to report for work and the
passage of time that led to [the] ultimatum, and Jorge does not
suggest that this action was anything other than standard operating
procedure.
Id. “Absent such an allegation, the plaintiff's loss of employment was merely an
‘inevitable consequence’ of the earlier (time-barred) . . . decision, and could not
constitute a separately actionable event.” Id. at 563. (quoting Ricks, 449 U.S. at
12
W e need not and do not express an opinion on the court’s determination
that an action may accrue even though no adverse employment action has
occurred.
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257-58). “In short, the critical datum is the point in time at which the
discriminatory act occurred, not the point at which its effects became most
injurious . . . . The mere continuity of the employment relationship, in and of
itself, is not enough to prolong the life of a cause of action.” Id. (quotation
omitted). 13
Again, in Law, employees claimed a discriminatory failure to promote
occurring outside the appropriate time limitations was the cause of their lower
pay checks, each a discrete discriminatory action. 399 F.3d at 332-33. The court
rejected the claim because the determination of the amount of the paychecks was
made pursuant to a neutral policy. Id. at 333. W hile the court recognized the
earlier failure to promote could be used as background under M organ, it
concluded the allowance of a claim based solely on a time-barred discrete
employment decision would “undo” M organ’s insistence that each discrete act
start a new clock. Id. at 334.
These cases instruct, and we agree, that Haynes cannot use Larson’s alleged
13
The Supreme Court has noted, “[t]here may be circumstances w here it
will be difficult to determine when the time period should begin to run. One issue
that may arise in such circumstances is whether the time begins to run when the
injury occurs as opposed to when the injury reasonably should have been
discovered.” M organ, 536 U.S. at 114 n.7. In exceptional circumstances, “the
300-day period of limitations for filing a charge with the EEOC may be adjusted
by equitable doctrines such as waiver, estoppel and equitable tolling.” Davidson,
337 F.3d at 1188. Haynes wisely did not raise equitable tolling before the district
court or on appeal. The record reveals she clearly believed Larson’s actions were
discriminatory as early as M ay 2000, well over a year before she brought her
claims.
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intent in performing time-barred discrete actions resulting in the PIP, 14 to attach
discriminatory intent or pretext to the termination decision based on a neutral policy.
Haynes has failed to allege any discriminatory act on or after December 15, 2000. 15
She does not claim that a PIP w as outside standard operating procedure to address a
failure to meet her sales quota. Neither has she alleged that Level 3 did not even-
handedly include all employees currently on a PIP in the RIF. Finally, Haynes
presented no evidence that any other employees on a PIP were spared in the RIF. A s
14
Haynes argues that, because the PIP w as not an adverse employment
action, she had no opportunity to bring a claim until her claim ripened at the time
of her termination in June. As discussed above, Haynes could have brought he
claim as early as M ay 2000 and as late as 300 days from November 2000. W e
note Haynes concedes that, at the time she was placed on the PIP, she had failed
to make her sales quotas, but places the cause for her poor performance solely
upon Larson’s previous discrete acts of discrimination. Thus, her allegations only
underscore the fact that the PIP w as an inevitable consequence of the alleged
prior adverse employment actions, for which she did not file a timely charge. See
Ricks, 449 U.S. at 257-58 (“It appears that termination of employment at
Delaware State is a delayed, but inevitable, consequence of the denial of
tenure.”).
15
In her opening brief, Haynes alleges five discrete adverse employment
actions (other than being placed on the PIP) occurring within the time limitations.
First, she alleges the PIP was extended or Level 3 imposed a new PIP. These
arguments were not presented to the district court. Therefore, we will not
consider them here. Second, she contends she was fired while on approved sick
leave. W hile it is true Level 3's policy does not allow someone to be terminated
because he or she is on sick leave, Level 3 consistently stated Haynes was
terminated during the RIF because of the PIP, a fact admitted by Haynes.
Haynes’ third allegation centers on the failure to approve long-term medical
leave. However, it is uncontested that Level 3 was not involved in this decision.
Haynes’ fourth and fifth alleged adverse employment acts are her placement on
the list to be included in the RIF and her termination. As stated above, Haynes
fails to show these acts to be discriminatory, as all employees in her situation
were treated similarly.
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a result, she fails to demonstrate any timely inference of discrimination in her
inclusion in the RIF. Accordingly, we affirm summary judgment in favor of Level 3
on her claims of unlawful discharge. 16
D. Retaliation
Haynes also claims her inclusion in the RIF w as in retaliation for her
complaints of discrimination under Level 3's open-door policy. To succeed on a
claim of retaliation a plaintiff must show: “(1) that he engaged in protected
opposition to discrimination, (2) that a reasonable employee would have found the
challenged action materially adverse, and (3) that a causal connection existed
between the protected activity and the materially adverse action.” Argo v. Blue Cross
& Blue Shield of Kan., Inc., 2006 W L 1806605 at *7 (10th Cir. 2006) (10th Cir.
2006) (citing Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006))
(footnote omitted). Here, Haynes’ meeting with Hester occurred on November, 1,
2000. She was placed on the performance improvement plan on November 13, 2000
and terminated June, 2001, over seven months later.
“A causal connection may be shown by evidence of circumstances that justify
an inference of retaliatory motive, such as protected conduct closely followed by
adverse action.” O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.
2001) (quotation omitted). Standing alone, temporal proximity between the
16
Given our determination that summary judgment is appropriate on this
basis, we need not address whether the district court erred in determining Haynes
was not “disabled” under the ADA or w hether she waived this issue on appeal.
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protected activity and the retaliatory conduct must be very close in time. Otherwise,
“the plaintiff must offer additional evidence to establish causation.” Id. A seven-
month period between protected activity and adverse action will not, by itself,
establish causation. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th
Cir. 1999) (“[A ] three-month period, standing alone, is insufficient to establish
causation.”).
Haynes argues the temporal proximity is sufficient here because Level 3 could
not “immediately” terminate her while she was on medical leave, and therefore,
“[t]he company’s opportunity to camouflage plaintiff’s termination within an
innocent-looking RIF did not present itself until a RIF was scheduled.” (Appellant’s
Br. at 33.) Such speculative argument is not only insufficient, it defies logic.
Assuming Larson’s decision to place Haynes on the PIP w as because she had
spoken out, such assumption does not establish an inference that Larson’s motive
carried over to R oberts’ decision, seven months later, to include her in the RIF. “An
employer's refusal to undo a discriminatory decision is not a fresh act of
discrimination.” Croy v. Cobe Labs, Inc., 345 F.3d 1199, 1203 (10th Cir. 2003)
(quotation omitted); see Stepney v. Naperville Sch. Dist. 203, 392 F.3d 236, 240 (7th
Cir. 2004); Stewart v. Booker T. Washington, Ins., 232 F.3d 844, 853 (11th Cir.
2000); Lever v. Northwestern Univ., 979 F.2d 552, 556 (7th Cir.1992). Indeed, the
facts indicate no causal connection between Larson’s alleged retaliatory decision and
Roberts’ neutral application of policy.
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Haynes admits that, at the time Larson acted, neither he nor anyone else at
Level 3 anticipated the future RIF or w as aware the PIP would expose Haynes to
collateral vulnerability regarding her employment. (Appellant’s Br. at 20.) (She
concedes “[N]ot even the manager who placed plaintiff on the original PIP could
predict that it was a precursor to plaintiff’s termination.”) Two weeks later, Haynes
left work on medical leave. Haynes’ assertion that her medical leave prevented her
immediate termination is refuted by the fact she was on medical leave at the time she
was included in the RIF. Haynes does not dispute Level 3's policy whereby persons
under a corrective action plan were chosen to be placed on the list for inclusion in
the RIF. Haynes does not aver there were employees exempted from this policy or
that some employees under a corrective action plan were not fired. In short, Haynes
has not shown any connection between Larson’s motivation placing Haynes on the
PIP and Level 3's decision to include all employees on a corrective action plan as
primary candidates and their ultimate inclusion in the RIF. See Manning v. Chevron
Chemical Co., LLC., 332 F.3d 874, 884 (5th Cir. 2003) (applying a general policy to
an employee is not retaliation), cert. denied, 540 U.S. 1107 (2004). Thus, she has
failed to establish the causation element of her retaliation claim.
Conclusion
In sum, to the extent Haynes’ claims rely on her discharge, she fails to
establish the discriminatory intent necessary for a prima facie case. To the extent
Haynes’ claims are based on Larson’s actions, her claims are untimely. Accordingly,
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we AFFIRM summary judgment in favor of Level 3.
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