Fye v. Oklahoma Corp. Com'n

• Decision Date: 27 February 2008
• Docket Number: No. 06-6307.,06-6307.
• Citation: 516 F.3d 1217
• Parties: Pamela D. FYE, Plaintiff-Appellant, v. OKLAHOMA CORPORATION COMMISSION, a State Agency; Denise A. Bode, individually; Bob Anthony, individually; Jeff Cloud, individually; Tom Daxon, individually; R Clark Musser, individually, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

516 F.3d 1217

Pamela D. FYE, Plaintiff-Appellant, v. OKLAHOMA CORPORATION COMMISSION, a State Agency; Denise A. Bode, individually; Bob Anthony, individually; Jeff Cloud, individually; Tom Daxon, individually; R Clark Musser, individually, Defendants-Appellees.

No. 06-6307.

United States Court of Appeals, Tenth Circuit.

February 27, 2008.

Mark Hammons, Hammons, Gowens & Associates, Oklahoma City, OK, appearing for Appellant.

David W. Lee (Ambre C. Gooch, with him on the brief), Comingdeer, Lee & Gooch, Oklahoma City, OK, appearing for Appellees.

Before TACHA, McKAY, and TYMKOVICH, Circuit Judges.

TACHA, Circuit Judge.

Plaintiff-Appellant Pamela Fye appeals the District Court's entry of summary judgment in favor of Defendant-Appellee Oklahoma Corporation Commission ("OCC") on her claim of retaliatory discharge under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and its denial of her motion for reconsideration of that issue. We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

The OCC hired Ms. Fye as the Director of Personnel in 1996 and shortly thereafter promoted her to Director of Administration, a position she held until her termination in March 2003. Her responsibilities included overseeing the human resources, finance, public information, and mail-room functions of the OCC. The facts relevant to this appeal occurred primarily from the beginning of February 2003 through Ms. Fye's termination on March 6, 2003.¹

On February 3, 2003, the OCC hired Thomas Daxon as Acting General Administrator, the top administrative officer at the OCC. He was brought in on a temporary basis to reorganize and downsize the OCC due to impending state budget cuts. When Mr. Daxon first arrived at the OCC, he met with Commissioner Denise Bode to discuss issues that he needed to address during the reorganization process. Specifically, he asked Commissioner Bode whether the OCC had experienced any problems with sexual harassment, a concern that stemmed from his knowledge of such conduct in other state agencies. Commissioner Bode suggested that he consult Ms. Fye regarding sexual harassment issues because Ms. Fye, in her role as Director of Administration, acted as a contact for employee complaints and because Ms. Fye herself had previously complained that she had been sexually harassed at the OCC.

Mr. Daxon then questioned Ms. Fye concerning her earlier allegation of harassment, and she told him what took place. According to Ms. Fye, Mr. Daxon" questioned her on four other occasions that month concerning the harassment, wanting to know the specific details of what had occurred. Mr. Daxon contends that he wanted to verify that the issue had been resolved and wanted to send a message that sexual harassment would not be tolerated. Nevertheless, on two occasions Ms. Fye told Mr. Daxon that she did not want to respond because his questions made her feel uncomfortable. Also in February, Ms. Fye received, complaints of sexual harassment involving Mr. Daxon from two other employees. At a meeting on February 24, 2003, Ms. Fye raised her concerns about Mr. Daxon's alleged sexual harassment of her and others to Commissioner Bode.

During the same time period, Mr. Daxon held meetings nearly every day to discuss the budget crisis. Both Ms. Fye and Clark Musser, the general counsel, were often present. Throughout February, the relationship between Ms. Fye and Mr. Musser became increasingly strained. Mr. Musser was aggressive and verbally abusive when Ms. Fye disagreed with his opinions. Ms. Fye expressed her displeasure with Mr. Musser's behavior to Mr. Daxon, but according to Ms. Fye, Mr. Daxon claimed he did not notice any inappropriate conduct. Mr. Daxon testified that he did notice that Ms. Fye held some animosity toward Mr. Musser, and he felt that she was trying to find fault in Mr. Musser's job performance.

On February 28, Ms. Fye had an altercation with Mr. Musser during a meeting in Mr. Daxon's office. Shirley Hull and Mr. Daxon were also present. Mr. Musser expressed his dismay over the uncleanliness and disrepair of the office building. Ms. Fye explained that the building manager attempted to address the problems but was prevented from doing so by upper-level management. According to Ms. Fye, the disagreement escalated when Mr. Musser continued to provoke her, at which point she prepared to leave the office to let the situation calm down. Mr. Daxon, who had not been paying attention to the discussion, said that he wanted an explanation as to what provoked the confrontation before Ms. Fye could leave. He then motioned for Ms. Hull to exit the office. Ms. Fye tried to follow Ms. Hull out of the office, but Mr. Daxon grabbed her elbow to keep her in the room. Ms. Fye raised her voice and told Mr. Daxon that the problem was "about the way this man treats me and it is unacceptable." She looked at Mr. Musser and said, "I'm sorry your arrogance will not allow you to hear what I am saying." Mr. Daxon told Ms. Fye to return to her office and said he would come see her there.

A few hours later, Mr., Daxon came to Ms. Fye's office to discuss the altercation. Ms. Fye was visibly distraught and upset. During their conversation, Mr. Daxon, again asked her about her earlier allegations of sexual harassment. She informed him that she had reported Mr. Daxon's "harassment" regarding these prior allegations to Commissioner Bode. Mr. Daxon instructed Ms. Fye to take the rest of the day off and said that he would try to assist her with her problems the following week.

The following Monday, March 3, Ms. Fye called in sick to work. On March 4, she returned to deliver a letter to Mr. Daxon stating, in pertinent part:

[A]s you have been persistent in questioning me regarding that "sexual harassment" incident between myself and [another employee] several years ago, I am not comfortable and do not understand your intent. However, as I have advised our attorneys, Denise Bode, and yourself, I feel it is inappropriate for you to ask me about this matter and I request that you do not do this again....

Because of my discomfort and our need to work quickly regarding budget, personnel matters, and legislation, I would appreciate it if when either you or Mr. Musser need to speak with me regarding [one] of these topics one of the following people be present:

Budget — Shirley Hull

Personnel — Chandra Graham or a member of the Human Resources staff

Legislation — Jerry Matheson or Jim Palmer

These people would preserve any confidentiality as they are already involved in these areas within the scope of their duties.

Prior to receiving Ms. Fye's letter, Mr. Daxon did not plan to terminate her. He testified that he felt the demands presented in the letter, however, would prevent the OCC from functioning efficiently during the reorganization — a time when quick and decisive action was of the utmost importance. Consequently, Mr. Daxon informed the Commissioners that he believed Ms. Fye should be terminated immediately. With no objections from the Commissioners, he delivered the following letter to Ms. Fye on March 6:

The requirements and demands set forth in your letter are such that I have lost confidence in your ability to meet the demands that will be placed upon you. A spirit `of cooperation and team work, particularly among management, is necessary for the proper functioning of this Agency. As a result, I have decided to terminate your employment with the Oklahoma Corporation Commission, effective immediately.

In October 2003, Ms. Fye filed suit in federal district court, alleging sexual harassment in violation of Title VII, retaliation in violation of Title VII and the Family Medical Leave. Act (FMLA), and breach of contract and negligent hiring and retention in violation of Oklahoma law. The OCC moved for summary judgment on all' claims. The District Court granted the OCC's motion for summary judgment on Ms. Fye's retaliation claims — under both Title VII and the FMLA — as well as her breach of contract and negligent hiring claims, but it denied summary judgment on Ms. Fye's sexual harassment and negligent retention claims. Ms. Fye filed two motions for reconsideration of the court's entry of summary judgment on the Title VII retaliation claim. The District Court. denied both motions. The parties subsequently settled the claims surviving summary judgment. Ms. Fye now timely appeals the District Court's entry of summary judgment in favor of the OCC on her Title VII retaliation claim, as well as the District Court's denial of her second motion for reconsideration.

II. DISCUSSION

We review the grant of a summary judgment motion de novo. Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir.2004). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that 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." Fed. R.Civ.P. 56(c). We view all evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. Stover, 382 F.3d at 1070.

A. Evidence Before the District Court

Before we address whether there is sufficient evidence of retaliation to withstand summary judgment, we must first decide what evidence we will consider in making that determination. See Myers v. Okla. County Bd. of County Comm'rs, 151 F.3d 1313, 1319 (10th Cir.1998) ("In reviewing a grant of summary judgment, we do not consider materials not before the district court."). In her motion in opposition to summary judgment, Ms. Fye pointed to a laundry list of evidence in the record to support her claim of retaliation. On appeal, however, she limits her argument to four specific pieces of evidence: (1) the March 6 termination letter Mr. Daxon wrote to Ms. Fye; (2) a portion of the transcript from Mr. Daxon's deposition, in which he stated that...