Berry v. T-Mobile Usa, Inc.

Citation490 F.3d 1211
Decision Date27 June 2007
Docket NumberNo. 05-1533.,05-1533.
PartiesBarbara BERRY, Plaintiff-Appellant, v. T-MOBILE USA, INC., Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Andrew T. Brake of Andrew T. Brake, P.C., Englewood, Colorado, (Lee T. Judd of Andrew T. Brake P.C. and Thomas H. Terry of The Law Office of Stephen H. Swift, 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 LUCERO, SEYMOUR and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

After T-Mobile USA, Inc. (T-Mobile) 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-Mobile 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-Mobile'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 without cause or notice." (Appellant'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:

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 Manager 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 who 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-Mobile. 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-Mobile made clear it valued teamwork and expected its team managers to practice various strategies to promote this overall vision.

In 2003, in addition to her salary and bonus, Berry was identified as a "key employee" and was invited to participate in a T-Mobile 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-Mobile'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-Mobile, Barry did not employ the proper coaching methods, hold her team members accountable, or interact well with the other managers. At 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, William Grier was promoted to 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 were fine and she had nothing to worry about. (Id. at 150-51.) He also called her that day to repeat his assurances. He documented the conversation in a memorandum stating her teamwork 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-Mobile 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 accountable and refusing to work 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 (MS). Berry had been diagnosed with MS twelve years earlier and Kavanah was aware she was receiving treatment for her condition. Her primary treating physician was Dr. Elliott Frohman located in Dallas, Texas, whom she saw annually. Kavanah responded she would need to apply for leave under the Family Medical Leave Act (FMLA) in order to take time off. She filed her application, which was granted the day before T-Mobile terminated her employment.

According to T-Mobile, the decision to terminate Berry's employment had already been made when she made her request for FMLA 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 McMilleon.

T-Mobile 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-Mobile was not undergoing a reduction in force at the time and T-Mobile asserts the written justification was a clerical error. As indicated on the 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 Willis.

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-Mobile. Addressing the ADA claim, the court found Berry's MS was an impairment, but she failed to show the MS substantially affected her major life activities. In the alternative, Berry contended that even if her major life activities were not severely restricted, T-Mobile regarded her disabled as evidenced by its approval of her FMLA request. The district court ruled T-Mobile's approval, in itself, was insufficient to establish that her employer regarded her as disabled. The court concluded Berry failed to establish she was disabled under the ADA.

As to her gender and age discrimination claims, the district court determined Berry established her prima facie case, but failed to rebut T-Mobile'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 teamwork and accountability were priorities for T-Mobile, her proffered evidence of pretext was insufficient to survive summary judgment.

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. We 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. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir.1995). A court grants...

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