Stinnett v. Safeway, Inc.

• Decision Date: 01 August 2003
• Docket Number: No. 02-1200.,02-1200.
• Citation: 337 F.3d 1213
• Parties: Michelle STINNETT, Plaintiff-Appellant, v. SAFEWAY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

337 F.3d 1213

Michelle STINNETT, Plaintiff-Appellant, v. SAFEWAY, INC., Defendant-Appellee.

No. 02-1200.

United States Court of Appeals, Tenth Circuit.

August 1, 2003.

COPYRIGHT MATERIAL OMITTED

Submitted on the briefs:^*

John W. McKendree and Elizabeth Kelly, Law Offices of John W. McKendree, Denver, CO, for the Plaintiff-Appellant.

Gregory A. Eurich and Megan C. Bertron, Holland & Hart, L.L.P., Denver, CO, for the Defendant-Appellee.

Before SEYMOUR, LUCERO and HARTZ, Circuit Judges.

LUCERO, Circuit Judge.

Michelle Stinnett brought this sex-discrimination suit against her employer, Safeway, Inc. ("Safeway"), alleging disparate treatment and hostile work environment in violation of Title VII, 42 U.S.C. § 2000e et seq., and the Colorado Anti-Discrimination Act, Colo.Rev.Stat. § 24-34-402. The district court granted summary judgment in favor of Safeway. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse in part and affirm in part.

I

Michelle Stinnett began working for Safeway in December 1989 and was promoted in April 1996 to work as a meat wrapper in the retail stores. In January 1997, she received the opportunity to work as a temporary "project employee" on a data processing assignment. "Project employees" are assigned to work "backstage" temporarily on various assignments when the need arises, and Safeway routinely returns them to their regular retail positions upon completion of their project tasks. Working backstage is not a promotion and project employees receive no increase in pay or benefits by virtue of their assignments. At the time she accepted the data processing assignment, Stinnett understood the temporary nature of the position. She worked in this position for approximately eight months.

When her data processing assignment ended in November 1997, she obtained another assignment to work backstage in the Self-Maintenance Department under Bill Smith, installing checkstand equipment. This project lasted for two days. Between November 1997 and March 1998, she continued to work backstage for Smith on various assignments such as installing checkstand equipment and implementing a videoconferencing system in a number of retail stores. Around March 1998, Smith informed Stinnett that he was running out of work for her and that she would need to return to work at the retail store. At this point, she contacted the Safeway West District Office, which informed her that due to the lack of work for retail meat-wrappers, she would be placed on layoff status unless she could obtain another backstage assignment. When Stinnett informed Smith of this situation, Smith found another position for her in his department. Stinnett was ultimately assigned to perform the duties of another female employee, Renee Ayala, who had recently been promoted to a newly created "watchdog" position.¹

In her new position, Stinnett assisted field technicians, who worked on store computers, by filling in for them when they were on vacation or experienced an overflow of work. In addition, she assisted in cleaning, repairing, shipping, and inventorying equipment, and sometimes answered phones and monitored calls. Because she was working forty hours a week, Stinnett assumed that her new position was permanent and that she would not be returned to her previous retail meat-wrapper position. Around this time, Smith offered Stinnett a permanent position as a Self-Maintenance field technician, but she declined because she did not feel she had adequate experience and she did not wish to relocate to Colorado Springs.

Sometime in November 1998, a male project-employee with less department seniority, Malcolm Groves, was assigned to lead a business project referred to as the "4694 rollout." (Appellant's App. at 168.) Smith rejected Stinnett's requests to be placed on the project, and instead brought another male, Dan Krist, backstage to assist Groves with the 4694 project. At around the same time, Smith informed Stinnett that he no longer needed assistants for field technicians, and Stinnett was returned to her retail position as a meat wrapper. During the entire course of her tenure as a project employee, Stinnett continued to be a member of the retail-clerks bargaining unit, accrue seniority, and earn the same wage that she would have earned in her retail role, as is the policy for all temporary project employees. Consequently, she suffered no loss in salary or benefits upon returning to her retail position.

Stinnett filed a sex-discrimination suit against Safeway in Colorado state court, alleging disparate treatment and hostile work environment in violation of Title VII, 42 U.S.C. § 2000e et seq., and the Colorado Anti-Discrimination Act, Colo.Rev.Stat. § 24-34-402, which was removed to federal district court. Granting Safeway's motion for summary judgment, the district court concluded that Stinnett failed to (1) establish a prima facie case of sex discrimination; (2) produce evidence that Safeway's actions were pretextual; and (3) produce evidence of a hostile work environment. Stinnett appeals this judgment.

II

We review a grant of summary judgment de novo, applying the same legal standard used by the district court. McCowan v. All Star Maintenance, Inc., 273 F.3d 917, 921 (10th Cir.2001). If review of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, reveals there is no genuine issue as to any material fact, the moving party is entitled to summary judgment as a matter of law." Id. (quotation omitted). "[A]ll inferences arising from the record before us must be drawn and indulged in favor of the party opposing summary judgment." Id. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict." Foster v. AlliedSignal, Inc., 293 F.3d 1187, 1195 (10th Cir.2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). At the summary judgment stage, "our role is simply to determine whether the evidence proffered by plaintiff would be sufficient, if believed by the ultimate factfinder, to sustain her claim." Id.

A

Stinnett argues that Safeway's decision to transfer her back to her retail meat-wrapper position constituted disparate treatment in violation of Title VII. Applying the familiar analytical framework mandated by Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the district court concluded that Stinnett failed to satisfy the first step of the inquiry because she could not show an adverse employment action, the only disputed element of her prima facie case. Thus, we must consider whether a required return of an employee from a temporary position to her permanent assignment constitutes an "adverse employment action" subject to Title VII protection.

This is not the first case in which we have considered what constitutes such conduct. In Sanchez v. Denver Public Schools, 164 F.3d 527, 532 (10th Cir.1998), we explained that the phrase "adverse employment action" is to be liberally defined. "Such actions are not simply limited to monetary losses in the form of wages or benefits. Instead, we take a case-by-case approach, examining the unique factors relevant to the situation at hand." Id. (citation omitted). Conduct rises to the level of "adverse employment action" when it "constitutes 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." Id. (quoting Burlington Indust., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)); see also Hooks v. Diamond Crystal Specialty Foods, Inc., 997 F.2d 793, 799 (10th Cir.1993) (noting that a reassignment may be an adverse employment action when the employee "receives less pay, has less responsibility, or is required to utilize a lesser degree of skill than his previous assignment"), overruled on other grounds by Buchanan v. Sherrill, 51 F.3d 227, 229 (10th Cir.1995). Actions presenting nothing beyond a "mere inconvenience or alteration of responsibilities," however, do not constitute adverse employment action. Sanchez, 164 F.3d at 532 (characterizing the reassignment of a fourth-grade teacher to work as a second-grade teacher at another school as a "purely lateral transfer," and rejecting the teacher's argument that this constitutes an adverse employment action merely because her commute-time increased and no other teachers volunteered for the transfer).

We cannot say on this record that Stinnett's transfer did not result in a significant change in responsibilities—from providing skilled technical assistance to wrapping meat. Although she maintained her wage level, seniority, and title as meat wrapper throughout the relevant time period, there is evidence that the reassignment resulted in a de facto reduction in responsibility and required a lesser degree of skill. We conclude that Stinnett has submitted sufficient evidence to suggest that she suffered an "adverse employment action." As to the suggestion that the transfer did not constitute such conduct because Stinnett's temporary project had merely lapsed and there was no longer any need for her assistance backstage, this goes to the second and third steps of the McDonnell Douglas inquiry, discussed below, examining Safeway's reason for the transfer, and is not relevant to determining whether the transfer constitutes an adverse employment action.

We do not propose to discourage commendable employee programs of the type Safeway has implemented in this case. We stress that an employer always retains the right to reassign a temporarily assigned...