Hiatt v. Colorado Seminary

858 F.3d 1307 (2017) United States Court of Appeals for the Tenth Circuit 2017-06-02

civil; sex-discrimination and retaliation claims (Title VII and Title IX) by demoted university psychologist; summary judgment for employer affirmed by CA10 on lack of pretext (alternative ground as to discrimination) (result: claimant-lost)

Facts

  1. 1 Covered entity: employer, employment agency, or labor organization satisfied conceded
    Colorado Seminary owns and operates the University of Denver (“DU”), including DU’s Health and Counseling Center (“HCC”), which provides wellness services such as counseling to DU’s student body.
  2. 1 Covered entity: employer, employment agency, or labor organization satisfied conceded
    In November 2011, DU hired Dr. Hiatt to be a Staff Psychologist and the Training Director at the HCC.
  3. 2 Protected trait: race, color, religion, sex (including pregnancy/abortion), or national origin satisfied assumed
    Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an individual “because of such individual’s ... sex.”
  4. 2 Protected trait: race, color, religion, sex (including pregnancy/abortion), or national origin satisfied assumed
    We assume without deciding that Dr. Hiatt could make a prima facie McDonnell Douglas showing of sex discrimination and retaliation under Title VII and Title IX.
  5. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status satisfied law
    Dr. Kent presented Dr. Hiatt with three options: (1) resign; (2) be demoted and undergo six months of outside counseling about her supervisory style; or (3) remain in her position and allow Human Resources (“HR”) to handle the matter.
  6. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status satisfied law
    In her new position as Staff Psychologist/Outreach Coordinator, Dr. Hiatt was paid $58,000— a $2,000 reduction in pay from her previous position.
  7. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status not no-evidence
    Upon her return, Dr. Palma-teer increased Dr. Hiatt’s weekly clinical hours from 22 to 24 hours.
  8. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status not no-evidence
    She also required Dr. Hiatt to provide a doctor’s note to justify non-Family Medical Leave Act (“FMLA”) sick leave, obtain permission before “blocking her schedule” (i.e., make certain blocks of time in her calendar unavailable for clinical appointments), and make up for missed clinical time.
  9. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status not no-evidence
    On May 30, 2014, Dr. Hiatt submitted a letter of resignation, in which she complained of retaliation for filing her internal EEO and EEOC complaints.
  10. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status satisfied law
    For discrimination claims, “[a]n adverse employment action is 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.”
  11. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status satisfied law
    A reasonable person in Dr. Hiatt’s position would view her demotion to Outreach Coordinator, coupled with a salary decrease of $2,000, as an adverse employment action.
  12. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status not no-evidence
    “To establish constructive discharge, a plaintiff must show that she had no other choice but to quit.”
  13. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status not no-evidence
    The working conditions she describes—such as being required to work two extra hours per week, turn in timely case notes, and justify non-FMLA sick time—do not amount to an objectively intolerable working environment.
  14. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status not no-evidence
    An employee is similarly situated to the plaintiff if the employee shares the same supervisor, is subject to the same standards governing performance evaluation and discipline, and has similar relevant employment circumstances, such as work history.
  15. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status not no-evidence
    Dr. Hiatt has failed to identify any other similarly situated employees who allegedly received differential treatment.
  16. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status not no-evidence
    She suggests Ross Artwohl and Kimberly Mercer as relevant comparators because, like she did, they reported to Dr. Palmateer.
  17. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status not no-evidence
    Dr. Hiatt also proposes Dr. Fogle and Dr. Mathewson because Dr. Palmateer supervised them and the same professional standards applied to them as to Dr. Hiatt.
  18. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status not no-evidence
    But because Dr. Hiatt supervised these two individuals, they were not in positions comparable to Dr. Hiatt.
  19. 4 Adverse employment action affecting compensation, terms, conditions, privileges, or status satisfied law
    For the foregoing reasons, the only actions that qualify as adverse employment actions against Dr. Hiatt were (1) the demotion and (2) the failure to reinstate her supervisory duties.
  20. 6 Employer's legitimate, nondiscriminatory reason (McDonnell Douglas step 2) satisfied conceded
    First, Dr. Fogle, Dr. Mathewson, and Dr. Shanley elected to end supervision with Dr. Hiatt.
  21. 6 Employer's legitimate, nondiscriminatory reason (McDonnell Douglas step 2) satisfied conceded
    Based on those conversations, Dr. Kent determined Dr. Hiatt was in an “ethical grey area.”
  22. 6 Employer's legitimate, nondiscriminatory reason (McDonnell Douglas step 2) satisfied conceded
    Further, rather than take personal responsibility for the supervisees’ reactions, Dr. Hiatt blamed the supervi-sees’ pathologies as causing their strong reactions, including their decisions to stop supervision with her.
  23. 6 Employer's legitimate, nondiscriminatory reason (McDonnell Douglas step 2) satisfied conceded
    Based on her sessions with Dr. Hiatt, Dr. Asher opined that Dr. Hiatt “likely could return” to a supervisory role, but also noted that she was not likely to change her supervisory style.
  24. 6 Employer's legitimate, nondiscriminatory reason (McDonnell Douglas step 2) satisfied conceded
    DU’s proffered reasons satisfy its burden to articulate legitimate, nondiscriminatory, and nonretaliatory reasons for the demotion.
  25. 6 Employer's legitimate, nondiscriminatory reason (McDonnell Douglas step 2) satisfied conceded
    Once again, Dr. Hiatt does not contest these were legitimate, nondiscriminatory, and nonretaliatory reasons.
  26. 6 Employer's legitimate, nondiscriminatory reason (McDonnell Douglas step 2) satisfied conceded
    In their exit interviews after she was demoted, several supervisees described “troubling interactions” with Dr. Hiatt during supervision that gave DU further reason to believe Dr. Hiatt had “very poor boundaries.”
  27. 7 Pretext for discrimination (McDonnell Douglas step 3) not no-evidence
    “Evidence that the employer should not have made the [adverse employment] decision—for example, that the employer was mistaken or used poor business judgment—is not sufficient to show that the employer’s explanation is unworthy of credibility.”
  28. 7 Pretext for discrimination (McDonnell Douglas step 3) not no-evidence
    “The relevant inquiry is not whether the employer’s proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs.”
  29. 7 Pretext for discrimination (McDonnell Douglas step 3) not no-evidence
    When Dr. Kent and Dr. Palmateer met with Dr. Hiatt on February 22, 2013, and presented the three options to her, the reasons they stated then are the same reasons that DU provides in this litigation.
  30. 7 Pretext for discrimination (McDonnell Douglas step 3) not no-evidence
    Dr. Kent presented both Dr. Hiatt’s and Dr. Fogle’s timelines of events to Dr. Philinda Hutchings—the Dean of the Midwestern School of Professional Psychology—and Dr. Bill Bracker—the former Director of the Nova Southeastern University Consortium Internship.
  31. 7 Pretext for discrimination (McDonnell Douglas step 3) not no-evidence
    Consistent with Smothers, DU gave Dr. Hiatt multiple opportunities to explain her version of events.
  32. 7 Pretext for discrimination (McDonnell Douglas step 3) not no-evidence
    Indeed, Dr. Hiatt admitted in her deposition that supervisees even had a name for it—getting “Tawny-ed.”
  33. 7 Pretext for discrimination (McDonnell Douglas step 3) not no-evidence
    Dr. Hiatt has not shown that DU’s reasons for removing her from her position as Training Director and demoting her to Outreach Coordinator were dishonest or made in bad faith, Swackhammer, 498 F.3d at 1169-70, or were “so incoherent, weak, inconsistent, or contradictory that a rational factfinder could conclude they are unworthy of belief,” Johnson, 594 F.3d at 1211 (brackets and quotations omitted).
  34. 7 Pretext for discrimination (McDonnell Douglas step 3) not no-evidence
    In Dr. Kent’s view, Dr. Asher’s recommendation was equivocal.
  35. 7 Pretext for discrimination (McDonnell Douglas step 3) not no-evidence
    She pointed to the October 2013 email from Associate Provost for Student Life Patricia Helton, which called on Dr. Hiatt to have “better awareness about the power she holds” and “demonstrate[ ] appropriate professional boundaries in all contexts” before she could resume supervision.
  36. 7 Pretext for discrimination (McDonnell Douglas step 3) not no-evidence
    Dr. Hiatt has not shown DU’s reasons for refusing to reinstate her supervisory duties were pretextual for retaliation or discrimination.
  37. 11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
    On February 27, 2013, before Dr. Hiatt chose an option, her attorney sent DU a letter claiming DU’s request for Dr. Hiatt to leave her position as Training Director amounted to sex discrimination.
  38. 11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
    For retaliation claims, “a plaintiff must show that a reasonable employee would .have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
  39. 11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
    Dr. Kent and Dr. Palmateer initially gave Dr. Hiatt the reasons for her demotion in their February 22, 2013 meeting.
  40. 11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
    DU could not retaliate for Dr. Hiatt’s protected activity until she had engaged in such activity.
  41. 11 Retaliation for protected Title VII activity (42 U.S.C. § 2000e-3(a)) not no-evidence
    Dr. Hiatt cannot, therefore, create a triable issue that DU’s reasons for any adverse employment actions were pretextual for sex discrimination or retaliation.