Argo v. Blue Cross and Blue Shield of Kansas, Inc.

• Decision Date: 03 July 2006
• Docket Number: No. 05-3114.,05-3114.
• Citation: 452 F.3d 1193
• Parties: Griff G. ARGO, Plaintiff-Appellant, v. BLUE CROSS AND BLUE SHIELD OF KANSAS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1193

452 F.3d 1193

Griff G. ARGO, Plaintiff-Appellant, v. BLUE CROSS AND BLUE SHIELD OF KANSAS, INC., Defendant-Appellee.

No. 05-3114.

United States Court of Appeals, Tenth Circuit.

July 3, 2006.

COPYRIGHT MATERIAL OMITTED

Pantaleon Florez, Jr., Topeka, KS, for Plaintiff-Appellant.

Alan L. Rupe, Kutak Rock LLP, Wichita, KS (Georgina Adami, Kutak Rock LLP, Wichita, KS, and Stacy A. Jeffress, Blue Cross and Blue Shield of Kansas, Topeka, KS, with him on the brief), for Defendant-Appellee.

Before MURPHY, EBEL, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

This case presents an especially weak Title VII sex discrimination claim. The Plaintiff, Griff Argo, was fired by Blue Cross Blue Shield of Kansas, Inc. ("Blue Cross Blue Shield") following nearly a year of declining performance and disciplinary problems, one day after arriving late for work and failing to complete assigned work. He alleges that his termination was the product of reverse sex discrimination, citing a handful of flirtatious comments by his female supervisor over a period of several years. In the alternative, he alleges that he was terminated in retaliation for his decision to file an internal sex discrimination complaint. Both claims fall painfully short on summary judgment, and we affirm the decision of the district court.

I. Factual and Procedural Background

Griff Argo started work as an Individual Enrollment Specialist ("IES") for Blue Cross Blue Shield in January 1996. IESs spend 90% of the day on the phone, selling health, dental, and life insurance policies to new and existing customers. Blue Cross Blue Shield sets monthly and annual performance goals for each IES, including a number of individual health and dental policies and a dollar volume of life insurance. The company uses those performance goals as a basis for evaluating its employees. On annual review forms during Mr. Argo's tenure at Blue Cross Blue Shield, between 40% and 60% of the overall rating for an IES depended on the three categories of performance goals.

On January 2, 1996, within his first few weeks of work, Mr. Argo was introduced to Brenda Oliva, who then worked in a different department. They had met socially on a previous occasion, but Mr. Argo did not immediately remember Ms. Oliva's name. According to Mr. Argo, she "kind of chuckled" and said, "`oh, so you're too good to remember my name?'" App. 95PP. He did not consider the comment a "come-on line," but maintains that her "tone of voice ... impl[ied] a form of attraction, and I have to say sexual harassment." Id.

Between 1997 and the beginning of 2002, Mr. Argo's performance ranged from "commendable" to "distinguished." See App. 176, 180, 182, 184-85, 187-88. Despite occasional "problems with tardiness" he was praised as "an excellent employee and an asset to the IES team." Id. at 175-76. In 1999, Ms. Oliva became Mr. Argo's supervisor. On both his 2000 and 2001 annual reviews, she described Mr. Argo as "a team player," and wrote that she was "glad to have him in my department." Id. at 183-84, 187. In December 2001, her monthly Goal Attainment Status report for Mr. Argo was effusive: "You've had a great year. I'm very proud of you. You've made all of your goals for 2001. I look forward in [sic] working with you next year." Id. at 118. Mr. Argo alleges that throughout this period he endured a "pattern of sexual harassment," id. at 95PP, but cites only a single incident in three years: once, upon seeing Mr. Argo in the office dressed in shorts and a tank top on his way to the gym, Ms. Oliva joked, "Whoa, nice legs." Id. at 103.

Beginning in April 2002, Mr. Argo's performance began a steady slide. Ms. Oliva's comments on her monthly reports reveal her increasing anxiety. From April 2002: "You didn't meet your monthly goal on health but since you were up the other three months, you are meeting your health goal year to date.... Keep up the good work." Id. at 108. From June 2002: "You didn't make your monthly goal for health and life.... What can we do to help you meet your monthly goals? Is there anything I can do to help?" Id. at 110. From July 2002: "This is your second month you didn't make your monthly goal for health.... We need to overcome this.... Let's get together and see what we can do." Id. at 111. From September 2002: "[Y]ou've had 5 months that you did not make your monthly goal. Can you please share with me what you plan on doing to assure me you will make your 2002 health goal?" Id. at 113. From October 2002: "This is your sixth month for not making your monthly goal.... Let me know what I can do...." Id. at 114. From November 2002: "You did not make your monthly goal for the 7th month this year. You need to start using your time wisely." Id. at 115.

During the same period, Mr. Argo's tardiness problems worsened. Since June 2001, Ms. Oliva had required Mr. Argo to send her an email message upon arriving at work, warning him further late starts would result in formal "written probation." Id. at 130. On March 28, 2002, she gave him a written warning, admonishing him again for the "consistent amount of the time you were coming into work after 8:00." Id. at 131. She cautioned that "if this continues it will be a performance issue." Id. In mid-November 2002, Mr. Argo was caught reading a book at his desk during the work day, and continued reading for fifteen minutes before Ms. Oliva confronted him. Phone records revealed that he had not made a call in fifty-three minutes. The next day Ms. Oliva directed him to call some "old" prospective customers, but he refused. On November 22, she issued a written reprimand "for poor performance, specific to your attitude and not using your time correctly," and a blunt warning: "If your attitude does not improve in 30 days and if directives continue to be ignored then I have no alternative but to terminate you from Blue Cross Blue Shield of Kansas." Id. at 136.

Meanwhile, Ms. Oliva's campaign of exceedingly mild flirtation continued. On one occasion in July 2002, after monitoring one of Mr. Argo's calls and offering constructive criticism, Ms. Oliva smiled and winked at him. Two months later, Ms. Oliva gave him a birthday card — helpfully reproduced for us in full color by the parties — featuring a picture of a buxom woman dressed in black lingerie. The cover says, "A Birthday Riddle / Why do men like women in leather?" Inside, it continues, "Because they smell like a new car! / Happy Birthday, Guy." Id. at 162-63. The joke, you see, is that the sexually suggestive setup is followed by a completely nonsexual punch line. Finally, while he was being reprimanded on November 22 for his time management and attitude problems, Mr. Argo says that Ms. Oliva placed "the tip of her shoe slightly over the tip of [his] shoe," making him feel "slightly awkward," and did so a second time after he moved his foot away. Id. at 102.

Despite repeated warnings, Mr. Argo failed to meet his performance goal for health insurance in 2002. In her December 2002 monthly report, Ms. Oliva noted that he had missed his performance goals for eight consecutive months, and said, "We need to look at 2003 and see what you can do differently so we don't have a repeat of this year." Id. at 116. On January 2, 2003, Mr. Argo called in sick at 9:10 am, more than an hour after he was expected at work. The next day, in a written memorandum entitled "Performance," Ms. Oliva reminded Mr. Argo of his earlier warnings regarding tardiness and said, "This is your last warning. If you continue to not follow company or departmental policies which include but are not limited to tardiness, time utilization, not following directives, not calling in prior to 8:30 AM, etc., we will have no alternative but to terminate your employment at Blue Cross and Blue Shield of Kansas." Id. at 138.

Three days later, on January 6, Mr. Argo filed an internal complaint "regarding a persistent and increasing hostile work environment that I have endured for several months as a result of the conduct of the manager of individual sales, Brenda Oliva." Id. at 102. The complaint described the handful of incidents of "sexual harassment" he had endured at the hands of Ms. Oliva, including the birthday card, the shoe tip touching, the wink, and the comments "Whoa, nice legs" and "Oh, so you're too good to remember my name?" Id. at 102-03. These incidents, according to the complaint, "exemplif[y] [Ms. Oliva's] objectification of men in general and her concentration on me in particular as an object of attraction." Id. at 103. Later Mr. Argo added vague allegations of a "male/female control thing." Id. at 151. He told the company that he "dread[ed] coming to work" and felt "miserable sometimes in not wanting to come to work to face Brenda." Id. at 152. To remedy the situation, he asked for a transfer to a different supervisor and for "[m]y write-ups to be removed from my file." Id. at 154. For her part, Ms. Oliva reacted with "[t]otal shock." Id. at 157. She denied touching Mr. Argo's foot, and did not remember saying "nice legs" to him years earlier. Id. at 157, 161. She acknowledged that the birthday card "was probably inappropriate," but explained that she thought "he would only see the humor in it." Id. at 161. Asked to speculate as to why Mr. Argo would accuse her of sexual harassment, she said, "[b]ecause I have written him up." Id. at 157.

An internal company investigation commenced immediately, but "was not able to substantiate anything" and ended on January 20, 2003. Id. at 161. Apparently Ms. Oliva received counseling from her manager "on what is appropriate behavior for someone in a management position," but the company took no other official action. Id.

Mr. Argo missed all three of his monthly targets for January 2003. On her monthly report, dated January 21, Ms. Oliva issued an ultimatum: "If you do not met [sic] your February and March monthly goal[s] you will be terminated from Blue Cross Blue Shield of...