Pinkerton v. Colorado Dept. of Transp.

• Citation: 563 F.3d 1052
• Decision Date: 16 April 2009
• Docket Number: No. 07-1494.,07-1494.
• Parties: Betty J. PINKERTON, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

563 F.3d 1052

Betty J. PINKERTON, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.

No. 07-1494.

United States Court of Appeals, Tenth Circuit.

April 16, 2009.

David Lane of Killmer, Lane & Newman, L.L.P., Denver, CO, for Plaintiff-Appellant.

Douglas Cox, Assistant Attorney General (John W. Suthers, Attorney General, on the brief), Denver, CO, for Defendant-Appellee.

Before KELLY, EBEL, and GORSUCH, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Plaintiff-Appellant, Betty Pinkerton, appeals from the grant of summary judgment in her employment discrimination action. Ms. Pinkerton was employed by Defendant-Appellee, the Colorado Department of Transportation ("CDOT"), from April 1995 until her termination on March 27, 2003. Prior to Ms. Pinkerton's termination, her superiors within CDOT had held multiple meetings regarding her sub-standard performance and had sought to have her transferred elsewhere for employment. In addition, a few months before being terminated, Ms. Pinkerton had also been subjected to sexually oriented comments by her male supervisor. In response to her termination, Ms. Pinkerton brought sex discrimination and retaliation claims against CDOT pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"). Following discovery, the district court granted CDOT's motion for summary judgment as to each of Ms. Pinkerton's claims.

On appeal, Ms. Pinkerton makes three major claims which, she argues, requires reversal of the district court order. Ms. Pinkerton contends that (1) the district court incorrectly applied the summary judgment standard by construing evidence and resolving factual issues in favor of the movant; (2) the district court incorrectly applied the concept of vicarious employer liability for sexual harassment and improperly weighed the evidence in doing so; and (3) the district court improperly adjudicated the retaliation claim by ignoring evidence of pretext and resolving contested factual issues. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background

Ms. Pinkerton was hired by CDOT as an Administrative Assistant II ("AA II") in April 1995. From 1995 until 2000, Ms. Pinkerton was supervised by Mr. Scott Ellis. In 2000, CDOT reallocated Ms. Pinkerton's position to AA III, based on the job duties that Ms. Pinkerton performed rather than on the quality of her work in performing those duties. At the same time, CDOT also reassigned the supervision of Ms. Pinkerton from Mr. Ellis to Mr. David Martinez, which pleased Ms. Pinkerton because Mr. Ellis had resisted the reallocation of Ms. Pinkerton's position. Because of Ms. Pinkerton's new job category, she was expected to take on new duties and was provided certain new "Individual Performance Objectives" ("IPOs"). In addition, Ms. Pinkerton was to have "progress meetings" with Mr. Martinez every three weeks. After the transfer, however, Mr. Ellis—who still worked with Ms. Pinkerton—observed a significant decline in Ms. Pinkerton's performance.¹

This decline is also evident from the evaluations of Ms. Pinkerton that Mr. Martinez provided. In his notes for the August 21, 2000, progress meeting, Mr. Martinez documented a number of issues similar to those reported in the past by Mr. Ellis. Mr. Martinez noted that Ms. Pinkerton lacked a willingness to do requested work, had problems with her attitude and cooperation, failed to properly prioritize assignments, and lacked organizational and grammar skills. Mr. Martinez's notes from the September 12, 2000, and September 29, 2000, meetings contained similar comments. Based on these reports, CDOT held an R-6-10² meeting to review Ms. Pinkerton's performance. Mr. Richard Gabel, Mr. Martinez's superior, issued a corrective action for Ms. Pinkerton after finding that she had failed to "carry out certain job duties in a satisfactory manner." The corrective action identified five performance areas in which Ms. Pinkerton had to improve and warned that failure to improve would result in further disciplinary action. In April 2001, Mr. Martinez gave Ms. Pinkerton an overall rating of "needs improvement"; again, the report noted Ms. Pinkerton's need to improve working relations, prepare timely and accurate reports, reduce errors, and set priorities.

Ms. Pinkerton's continued poor performance led to another R-6-10 hearing on April 16, 2001; at the hearing, Ms. Karla Harding, CDOT's Regional Director, demoted Ms. Pinkerton to AA II. Accordingly, Mr. Martinez issued a memorandum on September 7, 2001, setting forth Ms. Pinkerton's new duties as an AA II. Ms. Pinkerton filed a grievance regarding the disciplinary action and was granted a hearing. As a result of the hearing, Ms. Pinkerton and CDOT entered into a settlement agreement. The agreement required Ms. Pinkerton to adhere to IPOs reflecting the duties highlighted in the September 7, 2001, memorandum and allowed her a certain number of errors per month in different objective categories. The new IPOs were to be used to evaluate Ms. Pinkerton's performance. Ms. Pinkerton was satisfied with the settlement agreement because it provided an objective basis by which her performance was to be evaluated.

However, Ms. Pinkerton's performance did not improve following the settlement agreement. The monthly progress review meetings revealed that Ms. Pinkerton exceeded the number of errors that she was allowed in multiple categories. Mr. Martinez provided written documentation of the errors, and Ms. Pinkerton acknowledges that a "good number" of her errors were reported by other people to Mr. Martinez. Then, in Ms. Pinkerton's 2002 evaluation, Mr. Martinez gave Ms. Pinkerton an overall rating of "needs improvement." Again, Mr. Gabel issued a corrective action, giving her four months to improve. However, Ms. Pinkerton continued to exceed the number of allowable errors in her monthly progress reviews, as demonstrated by the supporting documentation provided by Mr. Martinez.

On October 15, 2002, as required by the corrective action plan, Mr. Martinez sent Mr. Gabel a memorandum summarizing Ms. Pinkerton's lack of improvement and tabulating her errors. Knowing that she was in danger of losing her job, Ms. Pinkerton requested a meeting with Mr. Gabel and Ms. Wendy Miller. At the November 7, 2002, meeting, Ms. Pinkerton asked Mr. Gabel for time to look for a new job. Mr. Gabel agreed, and offered to help her look for a new job. Ms. Harding subsequently found a position in Denver that Ms. Pinkerton could have for a trial period.

After the November 7, 2002, meeting, however, Mr. Martinez began making inappropriate, sexually oriented remarks to Ms. Pinkerton. In December, 2002, Mr. Martinez asked Ms. Pinkerton questions such as, "How can you be divorced so long and be without men?" and "Don't you get urges?" Ms. Pinkerton testified that these questions made her feel sick to her stomach. On January 6, 2003, after observing a man walk past Ms. Pinkerton's office and wave to her, Mr. Martinez asked Ms. Pinkerton whether she "ha[d] anything going on with the man that just waved." The same day, Mr. Martinez asked her what her breast size was. On another occasion, Mr. Martinez asked Ms. Pinkerton if she masturbated and if she had breast enlargements. Mr. Martinez also told Ms. Pinkerton that he liked it when she wore skirts and tried to tell her a story about a married woman who "came on" to him. Ms. Pinkerton testified that the last inappropriate comments by Mr. Martinez occurred the week prior to February 21, 2003, when he made comments about her ex-husband and children, and asked to go to her house for lunch.

Ms. Pinkerton called Mr. Eugene Trujillo, CDOT's internal civil rights administrator, to report Mr. Martinez's comments on February 19, 2003. Mr. Trujillo was the first person she informed about the comments. She then filed a formal written complaint on February 24, 2003. Ms. Harding received notice of the complaint on February 26, 2003.

These events were followed by Ms. Pinkerton's meeting on February 27, 2003, with Mr. Gabel and Ms. Miller to discuss the job transfer. To the surprise of Mr. Gabel and Ms. Miller, Ms. Pinkerton turned down the reassignment to Denver, asserting that her current job was "fine." Despite having told Mr. Gabel previously that she would be willing to go to Denver, Ms. Pinkerton claimed that she no longer wanted to work in Denver because it was too far away. Ms. Pinkerton reconfirmed this decision in an e-mail on March 3, 2003. Accordingly, Mr. Gabel formally requested on March 7, 2003, that disciplinary action resume against Ms. Pinkerton. Ms. Harding then scheduled an R-6-10 meeting for March 13, 2003. At the meeting, Ms. Pinkerton did not mention the sexual harassment, and only presented a few e-mails and letters in her own defense.

Events unfolded rapidly thereafter. On March 18, 2003, Ms. Harding learned from the EEO that Ms. Pinkerton's sexual harassment complaint might be justified and immediately removed Mr. Martinez as Ms. Pinkerton's supervisor. Three days later, on March 21, 2003, Ms. Harding received Mr. Trujillo's investigation report, which concluded that Mr. Martinez had in fact made the inappropriate comments. Six days after that, on March 27, 2003, Ms. Harding notified Ms. Pinkerton that she had not adequately explained her performance problems and that her employment was terminated. Then, on April 1, 2003, Ms. Harding held an R-6-10 meeting with Mr. Martinez to address his violations of CDOT's sexual harassment policy. Six days later, on April 7, 2003, Ms. Harding demoted and reassigned Mr. Martinez (resulting in a salary reduction of approximately $1,100 per month), and required him to take a class on sexual harassment. Mr. Martinez apparently was reinstated to his prior position after about eight months.

After her termination, Ms. Pinkerton brought suit against CDOT, raising two claims for relief, namely, sexual harassment and retaliation under Title VII...