F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
June 27, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
B ARBA RA BER RY ,
Plaintiff - Appellant,
v. No. 05-1533
T-M OBILE USA, IN C.,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 04-cv-1494-LT B-CBS)
Andrew T. Brake of Andrew T. Brake, P.C., Englewood, Colorado, (Lee T. Judd
of A ndrew T. B rake P.C . and Thomas H. Terry of The Law Office of Stephen H .
Sw ift, P.C., Colorado Springs, Colorado, with him on the briefs) for Plaintiff -
Appellant.
David R. Hammond (Sue A. Haskell, with him on the briefs) of Davis Graham &
Stubbs LLP, Denver, Colorado, for Defendant - Appellee.
Before L UC ER O, SE YM OU R and O’BRIEN, Circuit Judges.
O’BRIEN, Circuit Judge.
After T-M obile U SA, Inc. (T-M obile) terminated Barbara Berry’s
employment, she filed an action claiming the termination violated 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 alleged breach of implied
contract and promissory estoppel. The district court granted summary judgment
in favor of T-M obile concluding Berry was an “at-will” employee. The court also
determined: (1) Berry was not “disabled” under the ADA because she had not
shown her disability severely impacted a major life activity, and (2) she failed to
establish pretext in relation to her gender and age discrimination claims.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM .
Background
Berry began as an employee with T-M obile’s predecessor, VoiceStream, in
October 2000, working in the Colorado Springs, Colorado, office as a Customer
Care Supervisor for an annual salary of $37,000. She was hired just before her
51st birthday. She received an employee handbook and signed the page which
stated: “I understand that my employment is at will to the fullest extent allowed
by law and is entered into voluntarily and may be terminated by me or the
Company at any time, with or w ithout cause or notice.” (A ppellant’s App. Vol. I
at 201.) In addition, page three of the handbook contained a paragraph which
reiterated her at-will status. It provided in relevant part:
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Nothing contained in this Agreement shall alter the status of
Employee’s employment with Employer, which is “at will.”
Employee acknowledges and understands that Employee’s
employment is of no specific duration and can be terminated at any
time by either Employee or Employer with or without cause, for any
reason or no reason, at any time. Employee acknowledges and agrees
that any representations to the contrary are unauthorized and void,
unless contained in a formal written employment contract signed by
both an Executive Officer of Employer and Employee.
(Id. at 202.)
On January 30, 2002, Berry accepted a promotion to Customer Care Team
M anager at an annual salary of $42,500 with a possible 10% bonus. 1 As a team
manager, Berry supervised six team coaches. Each team coach led a team of
twelve to fifteen customer care representatives w ho received and handled calls
from customers seeking assistance with their telephone services. Shortly after her
promotion, she received a favorable final performance review for her former
position.
Later that year, VoiceStream became T-M obile. The new general manager
of the Colorado Springs care center, Kevin Kavanah, assumed his duties in
December 2002. He was charged with evaluating the senior leadership team to
improve the call center’s poor performance. As part of the shift in management,
T-M obile made clear it valued teamwork and expected its team managers to
practice various strategies to promote this overall vision.
1
The offer of promotion included a paragraph stating her at-will status
would continue.
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In 2003, in addition to her salary and bonus, Berry was identified as a “key
employee” and was invited to participate in a T-M obile Cash Incentive Plan. 2 (Id.
at 225.) In September 2003, she received a raise based upon market and job
performance. However, Berry had difficulty with T-M obile’s requirement that
she use the proper coaching methods to improve her teams’ performance. The
endorsed methods included “employing a positive personal style, forming a
detailed plan and strategy for improving the performance of teams and
individuals, establishing timelines, reviewing progress, and [] holding others
accountable for implementing the plan.” (Id. at 132.) According to T-M obile,
Barry did not employ the proper coaching methods, hold her team members
accountable, or interact well with the other managers. A t one point she allegedly
made a “verbal attack” on Stephanie Brickel, the training manager. Kavanah
repeatedly counseled Berry on this aspect of her performance.
In late October or early November 2003, W illiam Grier w as promoted to
2
The Plan itself contained a paragraph entitled Employment at W ill which
provided:
Nothing in this Plan shall be construed in any way to alter the fact
that the participant is an employee at will and that either the
participant or the Company can terminate the employment
relationship at any time, with or w ithout reason.
(A ppellant’s App. Vol. I at 227.)
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senior manager, supervising the team managers and reporting to Kavanah. 3 After
Grier became senior manager, Berry reported to him. On October 30, 2003, Berry
approached Kavanah to discuss her “not feeling valued as a [team manager]” and
“she fe[lt] any day she may be terminated.” (Id. at 193.) Kavanah, having
become aware of a recent “breakthrough” in Berry’s coaching and reports of her
improvements, assured her things w ere fine and she had nothing to worry about.
(Id. at 150-51.) H e also called her that day to repeat his assurances. He
documented the conversation in a memorandum stating her teamw ork had
obviously improved, she was valued highly, and “she would clearly know if her
job was in jeopardy, and that any leader would know that before the ultimate in
disciplinary action takes place.” (Id. at 193.)
T-M obile contends that Kavanah’s belief Berry had made a breakthrough
was based on one successful coaching session in late summer 2003.
Unfortunately, his belief was short-lived. Kavanah later sat in on a meeting in
which Berry did not coach well and two weeks later reminded her she needed
improvement. Shortly before being fired, she prepared an unsatisfactory action
plan to address specific needs for her teams and coaches to improve. At the same
time, Grier reported to Kavanah that Berry again was failing to hold her teams
3
Prior to Grier’s promotion, Randy Smith had been promoted from team
manager to senior manager. Although Smith had done excellent work as a team
manager, he was not successful in the senior manager position. Eventually Smith
was demoted back to his old position. During the period between Smith’s
demotion and Grier’s promotion, Berry reported directly to Kavanah.
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accountable and refusing to w ork as a team member with her peers.
In October or November of 2003, Berry spoke with Kavanah about needing
a rest at work due to extreme fatigue caused by multiple sclerosis (M S). Berry
had been diagnosed with M S twelve years earlier and Kavanah was aware she was
receiving treatment for her condition. Her primary treating physician was D r.
Elliott Frohman located in Dallas, Texas, whom she saw annually. Kavanah
responded she would need to apply for leave under the Family M edical Leave Act
(FM LA) in order to take time off. She filed her application, which was granted
the day before T-M obile terminated her employment.
According to T-M obile, the decision to terminate Berry’s employment had
already been made when she made her request for FM LA leave. Kavanah had
been engaged in discussions with the human resources manager, Cassandra
Shepard, regarding the call center’s poor performance. Some time in November
the discussions culminated in a decision in which Kavanah, after consulting with
Kavanah’s supervisor, Shepard, Shepard’s supervisor and Grier, decided to
terminate the three female team managers Berry, Bannister and Olson, and a team
coach, David M cM illeon.
T-M obile terminated Berry’s employment on November 25, 2003. The
reason given on her termination form was a reduction in force. However, it is
undisputed that T-M obile was not undergoing a reduction in force at the time and
T-M obile asserts the written justification was a clerical error. As indicated on the
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other employees’ termination papers, these employees, including Berry, were
fired for poor performance. Specifically, Berry was repeatedly counseled
regarding her failure to employ proper coaching methods and her inability to get
along with others. Berry was replaced on an interim basis by Jeff Edmonds, a
younger male, and eventually her position was filled by Karen W illis.
On January 6, 2004, Berry filed a charge of discrimination claiming she
was fired due to her disability, age and gender. The district court granted
summary judgment in favor of T-M obile. Addressing the A DA claim, the court
found Berry’s M S was an impairment, but she failed to show the M S substantially
affected her major life activities. In the alternative, Berry contended that even if
her major life activities were not severely restricted, T-M obile regarded her
disabled as evidenced by its approval of her FM LA request. The district court
ruled T-M obile’s approval, in itself, was insufficient to establish that her
employer regarded her as disabled. The court concluded Berry failed to establish
she w as disabled under the A D A .
As to her gender and age discrimination claims, the district court
determined Berry established her prima facie case, but failed to rebut T-M obile’s
proffered non-discriminatory reasons for terminating her employment. Because
Berry did not dispute she had been advised about the stated deficiencies in her
performance and that teamw ork and accountability were priorities for T-M obile,
her proffered evidence of pretext was insufficient to survive summary judgment.
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Finally, the court rejected Berry’s breach of contract and promissory
estoppel claims, noting Berry’s signed employment agreement specified her at-
will employment status and there was no evidence of mandatory progressive
discipline policies, written or unwritten. Thus, there was no breach of contract
and no reasonable reliance on the impact of unwritten policies contradicting the
written employment agreement. Berry filed a timely appeal challenging each
aspect of the district court’s decision. W e address each in turn.
Discussion
The purpose of a summary judgment motion is to assess whether a trial is
necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). In other
words, there “must be evidence on which the jury could reasonably find for the
plaintiff.” Panis v. M ission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir.
1995). A court grants summary judgment for the moving party only where there
is no genuine issue as to any material fact in the pleadings, depositions, answers
to interrogatories, admissions, and affidavits. Fed. R. Civ. P. 56(c). W hen
applying this standard, a court must view the factual record in the light most
favorable to the non-movant. Applied Genetics Int'l., Inc. v. First Affiliated Sec.,
Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). “[S]ummary judgment will not lie if
the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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A. Whether Berry is “disabled” or “regarded as disabled” under the ADA.
“To establish a valid claim under the ADA, a plaintiff must first prove by a
preponderance of the evidence that she has a disability. 4 To satisfy the A DA’s
definition of disability, a plaintiff must (1) have a recognized impairment, (2)
identify one or more appropriate major life activities, and (3) show the
impairment substantially limits one or more of those activities.” Holt v. Grand
Lake M ental Health Ctr., Inc., 443 F.3d 762, 765 (10th Cir. 2006) (citations
omitted). “W hether the plaintiff has an impairment within the meaning of the
ADA and whether the conduct affected is a major life activity for purposes of the
ADA are questions of law for the court to decide. Ascertaining whether the
impairment substantially limits the major life activity is a question of fact for the
jury, although a court is not precluded from deciding the issue on a motion for
summary judgment.” Id. at n.1 (citation omitted).
1. Substantial Limitation
The United States Supreme Court defines a “substantial” impairment as
one “that prevents or severely restricts [an] individual from doing activities that
are of central importance to most people’s daily lives” and that is “permanent or
long term.” Toyota M otor Mfg., Ky. Inc. v. William s, 534 U.S. 184, 198 (2002)
4
The ADA defines the term "disability" as: (1) a physical or mental
impairment that substantially limits one or more of the major life activities of an
individual; (2) a record of such impairment; or (3) being regarded as having such
an impairment. 42 U.S.C. § 12102(2).
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(citation omitted). W e must strictly interpret the term “substantial” to “create a
demanding standard for qualifying as disabled.” Id. at 197. The ADA regulations
describe “substantially limited” as “[u]nable to perform a major life activity that
the average person in the general population can perform;” or “[s]ignificantly
restricted as to the condition, manner or duration under which an individual can
perform a particular major life activity as compared to the condition, manner, or
duration under w hich the average person in the general population can perform
that same major life activity.” 29 C.F.R. § 1630.2(j)(1)(I)-(ii) (2001). Factors to
be considered are: “[t]he nature and severity of the impairment; [t]he duration or
expected duration of the impairment; and [t]he permanent or long term impact, or
the expected permanent or long term impact of or resulting from the impairment.”
29 C.F.R. § 1630.2(j)(2)(i)-(iii). 5 An impairment’s effects are assessed on a
case-by-case basis. Holt, 433 F.3d at 766. On summary judgment, the ultimate
question is whether the evidence presented could allow a jury to conclude the
limitations “amount to such severe restrictions in the activities that are of central
importance to most people’s daily lives that they establish a manual task
disability.” Toyota, 534 at 202.
Berry contends she is substantially limited in the life activities of caring for
herself, walking and performance of manual tasks. Specifically, Berry alleges she
5
To date, the Supreme Court has expressly declined to determine the
amount of deference due these regulations. Toyota, 534 U.S. at 194.
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“has to rest before showering, cannot do household chores that are handled by
others in the family, and essentially has to plan when things can be accomplished.
She also is limited in duration in the amount of time available to her.”
(A ppellant’s Br. at 21.) She maintains the district court erred in considering only
whether the impairment “severely” restricted Berry from performing the affected
major life activities. Berry contends the district court failed to consider “[t]he
duration or expected duration of the impairment; and [t]he permanent or long term
impact, or the expected permanent or long term impact of or resulting from the
impairment.” 29 C.F.R. § 1630.2(j)(2)(ii)-(iii). W hile Berry correctly cites the
federal regulation, we need not parse the relevant considerations here. Under any
of them, Berry is not currently disabled.
The evidence, viewed in the light most favorable to Berry, reveals at the
time of her discharge, Berry suffered from extreme fatigue which would cause
cognitive difficulties, temporary postponement of activities and, on occasion,
result in a fall. However, the medical records submitted by her physician
demonstrate her activities were not substantially limited and many of her
symptoms could be addressed through medication. W hen Berry first began
treatment with Dr. Frohman she would see him every six months, but eventually
her appointments were extended to annual visits. In M ay 2002, Dr. Frohman
proscribed Provigil for Berry’s fatigue, an ongoing problem w hich was
exacerbated by changes in her w ork schedule. During the same visit, Dr.
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Frohman reported Barry was “doing remarkably well” in her daily activities.
(Appellant’s App. Vol. I at 125.) She was advised, however, to use a straight
cane later in the day to prevent “fatigue induced falling.” (Id.) In D r. Frohman’s
2003 report, he stated Berry had not fallen within the last six months and had
benefitted from the Provigil, but still experienced cognitive dysfunction such as
short-term memory problems when fatigued. Overall, the doctor reported her
daily living activities remain unchanged. Dr. Frohman’s 2004 report states Berry
received “excellent benefit” from her medication regarding fatigue. (Id. at 128.)
Her condition apparently remained stable in 2005, when the doctor noted she was
doing “remarkably well with . . . no evidence of significant change in her daily
activities.” (Id. at 136.) Indeed, Berry admitted her fatigue level depended on
whether she was taking her medication. If she takes the proscribed Provigil, she
“has a greater ability to do everything.” (Id. at 84.) Even in the event the
medication did not provide complete relief, her strategy for dealing with her
fatigue was to postpone her chores or allow her husband and daughter to complete
them.
Compare these facts to those in our recent case, Holt v. Grand Lake M ental
Health Center, Inc., 443 F.3d 762 (10th Cir. 2006). There, the plaintiff had
cerebral palsy. In determining whether she had a substantial disability, we
observed:
W hile Holt needs help when chopping, cutting, and slicing food, the
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evidence is insufficient to allow a factfinder to conclude she is
severely restricted in her ability to cook. It is undisputed that Holt
occasionally must ask others for assistance when buttoning her
clothing; Holt has introduced no evidence, however, that would
permit a factfinder to conclude she is severely restricted in dressing
herself.
...
Holt also claims the limitations caused by her cerebral palsy
substantially impair her ability to perform the major life activity of
caring for herself. Caring for one's self encompasses normal
activities of daily living; including feeding oneself, driving,
grooming, and cleaning home. As discussed above, the relevant
evidence shows Holt has difficulty with, or is prevented from
performing, a limited number of manual tasks. It also indicates Holt
sometimes has difficulty chew ing and swallow ing her food. These
specific limitations, however, do not permit a rational factfinder to
conclude Holt is prevented from caring for herself or is severely
restricted in her ability to care for herself.
Holt, 443 F.3d at 767 (internal citation and quotation omitted). 6 Unlike Holt,
Berry does not dispute she can perform all daily life activities given sufficient
rest, walk with the aid of a cane, can treat her symptoms with medication, and her
cognitive difficulty does not prevent her from learning and working. The district
6
See also Croy v. Cobe Labs., Inc., 345 F.3d 1199, 1204 (10th Cir. 2003):
In support of her claim that her multiple sclerosis limited her major
life functions, Appellant argues that she was frequently forced to
take unscheduled leave, was frequently unable to lift heavy objects,
could not bear “sustained exertion,” and could not care for her
children, complete household chores, or cook for her family.
Appellant alleges that when she is suffering fatigue all of her life’s
activities are halted.
....
[W ]e agree with the district court that Appellant has not shown the
substantial impairment of a life activity.
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court did not err in considering her family’s assistance w ith the household chores,
as that is part of daily living in most families. Berry’s condition has not
significantly degenerated over the last several years, and according to her
physician, she has stabilized. Thus, while Berry may have to make some
adjustments in her daily routine, the district court did not err in finding Berry was
not “disabled” as a matter of law . 7
2. Regarded As Disabled
In the alternative, Berry asserts the district court erred in concluding
there was no issue of fact as to whether T-M obile considered her disabled. Berry
contends T-M obile’s grant of her FM LA leave request is sufficient to raise a
question of fact. W e disagree.
Equal Employment Opportunity Commission regulations presents three
different ways in which an individual may satisfy the meaning of “regarded as
having a disability”: (1) the individual may have an impairment that is not
substantially limiting but is perceived by the defendant as constituting a
substantially limiting impairment; (2) the individual may have an impairment that
is substantially limiting only because of the attitudes of others toward the
impairment; or (3) the individual may have no impairment at all but is regarded
by the defendant as having a substantially limiting impairment. 29 C.F.R.
7
See Heisler v. M etropolitan Council, 339 F.3d 622, 628 (8th Cir. 2003)
(“[B]ald assertions that one is limited in a major life activity are insufficient to
withstand summary judgment.”).
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§ 1630.2(l). In addition, a claimant may be deemed to have a “record” of
disability either by having a history of substantial limitation of a major life
activity or by having been misclassified as having such an impairment. 29 C.F.R.
§ 1630.2(k).
Because T-M obile knew Berry had M S and knew of her fatigue and
resulting cognitive challenges, Berry argues Kavanah’s suggestion she apply for
FM LA leave and the approval of her application is evidence that T-M obile
considered her disabled. Although we have found no precedent directly on point
in this Circuit or others, we agree with the district court’s conclusion that T-
M obile’s approval of Berry’s FM LA request does not establish a question of fact. 8
8
An unpublished Tenth Circuit district court case has clearly rejected a
contention that recommending FM LA leave establishes an A DA “regarded as”
claim. M cKinzie v. Sprint/United M gmt Co., No. 03-2348-GTV, 2004 W L 263444
*7 (D. Kan. Nov. 16, 2004) (supervisor’s “awareness of Plaintiff’s panic disorder
and his belief that she should apply for FM LA leave does not establish a
‘regarded as’ claim under the ADA”) (citing Bost v. Headco Indus., Inc., No.
02-2182-GTV, 2003 W L 21939020, at *5 (D . Kan. Aug. 4, 2003); Ruggles v.
Keebler Co., 224 F. Supp. 2d 1295, 1302 (D. Kan. 2002) (citation omitted)
(determining that an employer’s recommendation to apply for disability insurance
did not support the plaintiff’s “regarded as” claim because “disability is a term of
art under the ADA”); Gazaway v. M akita U.S.A., Inc., 11 F. Supp. 2d 1281, 1288
(D . Kan. 1998) (holding the fact that the employer encouraged an employee to
seek counseling established only that the employer was sympathetic to the
employee’s experience, not that the employer regarded the employee as disabled);
Ellis v. M ohenis Servs., Inc., No. 96-6307, 1998 W L 564478, at *5 (E.D. Penn.
Aug. 24, 1998) (“[w]hether the defendants believed the plaintiff was eligible for
FM LA leave, or believed the taking of such leave was proper under the
circumstances, does not demonstrate that they regarded him as disabled” because
“an employee who has a ‘serious health condition’ for purposes of the FM LA is
not necessarily ‘disabled’ under the ADA.”).
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An employer’s knowledge of an impairment alone is insufficient to establish the
employer regarded the employee as disabled. Steele v. Thiokol Corp., 241 F.3d
1248, 1256 (10th Cir. 2001).
W e have often stated “[d]isability is a term of art under the ADA.” Doyal
v. Okla. Heart, Inc., 213 F.3d 492, 495 (10th Cir. 2000); Poindexter v. Atchison,
Topeka & Santa Fe Rwy Co., 168 F.3d 1228, 1230 (10th Cir. 1999). In contrast,
the leave provisions of the FM LA are wholly distinct from the statutory definition
of “disability” and an employer’s reasonable accommodation obligations covered
under the ADA. 9 As courts have recognized in various contexts, “there may be
some parallels between the ADA and FM LA, but applicable regulations explicitly
state that ADA's ‘disability’ and the FM LA’s ‘serious health condition’ are
different concepts, and must be analyzed separately.” Hurlbert v. St. M ary’s
Health Care Sys., Inc., 439 F.3d 1286, 1295 (11th Cir. 2006) (quoting Stekloff v.
St. John’s Mercy Health Sys., 218 F.3d 858, 861 (8th Cir. 2000); see also Hoge v.
Honda of Am. M fg., Inc., 384 F.3d 238, 249 (6th Cir. 2004) (“Unlike the FM LA ,
the finding of a disability is the key ‘that unlocks the storehouse of statutory
protections’ under the A D A .”). Given the very different focus of the two
statutory protections, Kavanah’s suggestion to apply for FM LA leave and T-
9
The FM LA grants an eligible employee the right to take up to twelve
workweeks of unpaid leave annually for any one or more of several reasons,
including “[b]ecause of a serious health condition that makes the employee unable
to perform the functions of the position of such employee.” 29 U.S.C.
§ 2612(a)(1)(D).
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M obile’s approval of Berry’s application does not demonstrate an issue of fact as
to whether Berry was considered disabled under the ADA. Consequently, Berry
failed to present a case of discrimination under the ADA.
B. Pretext
Berry claims T-M obile unlawfully discriminated against her based on her
gender and age. Because she presented circumstantial evidence to support her
claims, we apply the framew ork set forth in M cDonnell Douglas Corporation v.
Green, 411 U.S. 792 (1973). Plotke v. White, 405 F.3d 1092, 1099 (10th Cir.
2005). “The employee must first establish a prima facie case of a prohibited
employment action and if she does, the burden shifts to the employer to state a
legitimate, nondiscriminatory reason for its adverse employment action. If the
employer meets this burden, then summary judgment is warranted unless the
employee can show there is a genuine issue of material fact as to whether the
proffered reasons are pretextual.” Id. A pretext argument requires the court to
“examine the facts as they appear to the person making the decision,” to
determine whether the employer “honestly believed those reasons and acted in
good faith upon those beliefs.” Rivera v. City & County of Denver, 365 F.3d
912, 924-25 (10th Cir. 2004) (internal quotations omitted). Our inquiry does not
review the wisdom or fairness of the employer’s proffered reasons. Id. “[A]t
issue is whether the evidence of Plaintiff’s misconduct presented to [the
decisionmakers] was so weak that a rational factfinder could infer that [the]
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expressed reason for terminating Plaintiff must have been pretextual.” Id. at 925.
The district court determined Berry presented a prima facie case of
discrimination on both her claims but failed to demonstrate T-M obile’s proffered
non-discriminatory basis for its decision, her performance, was pretextual. Berry
contends the district court erroneously resolved issues of fact in reaching its
conclusion.
Berry claims pretext is shown by a series of events in context. First, she
points to evidence of her satisfactory performance, her raise in September 2003
and Kavanah’s October 30th oral assurances and memo approving her
performance, and insists any earlier performance difficulties were rendered “non-
issues” by her improvement. She then points to the timing; Kavanah’s approval
was given only three weeks before her termination, which itself occurred just
days after she requested accommodation for her fatigue. In addition, she finds it
suspicious that Kavanah’s original assessment was based on his own observation
and that of others, yet his alleged turnaround was based solely on Grier’s
comm ents. Consequently, she concludes the district court made a factual
determination in favor of T-M obile w hen it discounted this evidence solely
because there was no evidence rebutting Kavanah’s testimony as to his motivation
in terminating her employment.
Berry’s rendition of the record, however, is incomplete. She fails to
mention T-M obile presented uncontested evidence that her raise in 2003 was an
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across-the-board payment adjustment made at all call centers and therefore is not
evidence of Kavanah’s assessment of her performance. Further, Berry does not
deny she was repeatedly counseled regarding her failure to improve her
interactions. Nor does she deny Grier’s criticism of her performance to Kavanah
after October 30. She does not argue the action plan she submitted for her teams
and coaches was adequate. M ost importantly, Berry misapprehends the tenor of
Kavanah’s October 30 memo. It does not exonerate all past performance issues.
Rather, it affirms her improvement with cautionary advice. Two weeks prior to
October 30, Kavanah recorded the substance of another meeting he had with
Berry and one of her team coaches. The team coach was called to K avanah’s
office, with Berry present, to discuss coaching effectiveness. Kavanah noted that
during the meeting “[Berry] did not offer any response, but rather sat silently . . .
. and this concerned me about her interaction and coaching . . . .” (A ppellant’s
App. Vol. I at 195) The memo continues:
After [team coach] left the office . . . . I asked [Berry] why she did
not know about [his] shortcomings in advance of this meeting. She
stated she had not looked in the blue books (this is my concern of her
other coaches too) . . . I directed [Berry] to ensure all her team
members’ blue books are reviewed by October 28th, and that
effective Success Plans are documented by each coach showing the
steps that will be taken to help ensure the . . . success and the time
frames to achieve such activities.
(Id.)
Berry accurately states the O ctober 30 memo records K avanah telling Berry
she was “highly valued” but it also included:
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Follow-up with Barb related to her not feeling valued as a TM . . . .
She indicated that she feels that Sue N ichols and Cassandra Shepard
are “spies” and looking for questionable behavior of hers.
Barb became teary-eyed as she spoke of this.
I let her know that Cassandra and Sue are clearly not spies, but rather
enablers for us to have a strong leadership team, and their role is to
observe and give feedback on the + and — of those behaviors. I
cited several instances in which Barb’s behaviors w ere conflicting to
our direction, and that she was given very valuable, actionable
feedback to help her become more effective. I cited several
situations w here she took that feedback and indeed acted upon it.
...
I let Barb know that her continued area of improvement is inspecting
the coaching ability of her coaches and the documentation in coaches
(sic) blue books. . . . She agreed and committed to this.
Discussed her high focus on caring for the individual and continually
seeing the “bright side” of things in people — almost to a fault. Her
trust in her coach’s [sic] words is causing serious lapses in their
performance due to lack of followup on Barb’s part.
She indicated she had a “come to Jesus” meeting with her team and
told them they were no longer going to be able to skate by, and not
do what was directed by her (finally, a right step by Barb).
Discussed ensuring she follows up on deadlines given, and force the
accuracy of reports they generate for her. She is giving direction
little follow-up. Is this a respect issue? Do her coaches feel she will
not follow-up or follow through with them? This stems back to the
“holding people accountable” tag she has earned in the site.
Barb and I agreed she would give direction to her coaches with a
time frame, and follow-up on that date to see if they have delivered
on the expectation.
(Id. at 193-94.) These two memos together demonstrate the “issues” prior to
October 30, in this instance holding the employees she supervised accountable,
providing diligent follow up, and interaction with her peers, remained an area of
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concern. Berry does not argue these issues were not discussed on October 30 nor
does she contest that, after the memos, Grier informed Kavanah that Berry was
“telling you what you want to hear but she’s not improving.” (Id. at 189).
Berry also claims the error on her termination papers marking a reduction
in force as the reason for her termination indicates pretext. Because poor job
performance was also an option in the list of reasons provided on the form, she
concludes the paperw ork is evidence T-M obile’s “clerical error” excuse is a sham.
Berry offers no support for this theory. Nothing in the record suggests a
reduction in force occurred at T-M obile. The paperwork for every other manager
fired at the same time as Berry marked performance as the reason for termination.
Berry fails to show any benefit to T-M obile from its mistake. W e agree with the
district court that this discrepancy does not constitute an inconsistency sufficient
to show pretext.
Finally, Berry claims the termination violated T-M obile’s policies and
procedures. Berry presents no written policy, but contends T-M obile had an
unwritten progressive disciplinary policy. She relies on Shepard’s testimony
regarding T-M obile’s approach to discipline. 10 W hile Shepard testified there were
general progressive disciplinary strategies used depending on the employee and
10
Berry also attempts to rely on her own experience as a manager, claiming
she was trained she could recommend an employee’s termination only after
progressive discipline. However, as has occurred throughout Berry’s brief, the
record cite does not support her assertion.
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the situation, she did not testify T-M obile had an unwritten specific approach
requiring progressive discipline. Indeed, T-M obile presented substantial evidence
that many of its employees had been fired without warning or prior disciplinary
measures. Between 2002 and 2004, T-M obile fired twenty-six team managers,
team coaches and senior managers. Of those, twenty-one received no previous
discipline. 11 M oreover, even if T-M obile fell short of Berry’s expectation of
progressive discipline, this fact adds little to the pretext analysis. “The mere fact
that an employer failed to follow its own internal procedures does not necessarily
suggest that . . . the substantive reasons given by the employer for its employment
decision were pretextual.” Randle v. City of Aurora, 69 F.3d 441, 454 (10th
Cir.1995) (emphasis omitted). Because it is uncontroverted that T-M obile
decisionmakers did not believe a rigid policy existed, “even if the failure to
[follow procedure] was a mistake, it was not pretextual.” Id. at 455.
Given these facts, Berry failed to show “weaknesses, implausibilities,
inconsistencies, incoherencies or contradictions in [T-M obile’s] proffered
legitimate reasons for its action such that a reasonable factfinder could rationally
find them unw orthy of credence.” M organ v. Hilti, Inc., 108 F.3d 1319, 1323
(10th Cir. 1997).
C. Implied Contract/Promissory Estoppel
11
Eighteen were male, seventeen were younger than Berry and twelve were
under the age of forty.
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Berry was hired as an “at-will” employee as stated in both her letters of
employment in 2000 and 2002. T-M obile’s employee handbook contains a
conspicuous disclaimer and does not have a provision for progressive discipline.
Nonetheless, Berry claims there was an “unwritten policy” that immediate
dismissal would only be “for cause” which provides the basis for her breach of
implied contract and promissory estoppel claims. Berry also claims she relied on
Kavanah’s explicit promises he would tell her if her employment was in jeopardy.
Berry again relies on Shepard’s testimony regarding different levels of corrective
action, her testimony that only certain acts, such as violence, would lead to direct
dismissal if the dismissal were based on that act alone, and her confirmation
Berry did not engage in any activity that would support a direct dismissal and had
not received a written or verbal warning or been suspended.
Citing Evenson v. Colorado Farm Bureau M utual Insurance Com pany, 879
P.2d 402 (Colo. App. 1993), Berry claims she had an employment contract despite
the disclaimers in her letter of employment. In Evenson, the Colorado Court of
Appeals recognized "an employee hired for an unspecified period of time is
presumed to be an 'at-will employee' whose employment may be terminated
without cause or notice and such termination does not give rise to a cause of
action.” Id. at 408. This general rule does not apply, however, if the employer
has limited its right to terminate employees. Id. at 408-09. The Evenson court
noted that, even if there is a conspicuous disclaimer, the manual may create an
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implied contract if it contains mandatory termination procedures or requires “just
cause” for termination. Id. at 409. Finally, the Evenson court held that even if
the manual contains a disclaimer and includes language that makes use of the
disciplinary procedures discretionary, the contract issue should be submitted to
the jury if there is evidence that the employer's supervisors treat the disciplinary
procedures as mandatory. Id. A mandatory policy is demonstrated by evidence
that “the procedures were used in each instance of termination generally” and “the
procedures were always used with reference to employees in plaintiff's
department or at her level of management in the company.” M ariani v. Rocky
M ountain Hosp. & M ed. Serv., 902 P.2d 429, 435 (Colo. App. 1994).
Unlike Evenson, the evidence offered by Berry is insufficient to warrant
submission of the issue to a jury. The employee handbook does not contain any
reference to a policy of progressive discipline. As noted above, Shepard’s
statements do not establish an unwritten policy mandating progressive discipline
prior to terminating employment. Further, the evidence demonstrates many
employees were fired without progressive discipline, including employees at
Berry’s level of management in the company. Kavanah’s assurances to Berry do
not change this conclusion. The “promises” he made on October 30 did not alter
Berry’s at-will status or promise progressive discipline. Thus, Berry could not
reasonably rely on his words to restrict T-M obile’s right to terminate her
employment with or without cause. As a result, the district court properly
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awarded summary judgment to T-M obile on this claim.
Conclusion
Berry failed to demonstrate she was “disabled” under the ADA . Her claims
of gender and age discrimination collapse in the face of T-M obile’s evidence that
Kavanah terminated her employment because he genuinely believed her
performance had not improved despite the repeated efforts of several T-M obile
managers. Finally, Berry presented no evidence T-M obile or its managers
followed an unwritten progressive discipline policy or considered it a mandatory
process preceding termination of employment.
A FFIRME D.
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