Bennett v. Quark Inc.

• Decision Date: 03 August 2001
• Docket Number: No. 00-1177,00-1177
• Citation: 258 F.3d 1220
• Parties: (10th Cir. 2001) LINDA J. BENNETT, Plaintiff-Appellant, v. QUARK, INC., Defendant-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1220

258 F.3d 1220 (10th Cir. 2001)

LINDA J. BENNETT, Plaintiff-Appellant, v. QUARK, INC., Defendant-Appellee

No. 00-1177

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 3, 2001

Appeal from the United States District Court for the District of Colorado (D.C. No. 98-N-2089) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Nancy L. Pearl of Pearl and Associates, LLC, Denver, Colorado, and Anne Whalen Gill of Anne Whalen Gill, P.C., Greenwood Village, Colorado, for Plaintiff-Appellant.

Lynn D. Feiger and Joan M. Bechtold of Feiger, Collison & Bechtold, LLC, Denver, Colorado, for Defendant-Appellee.

Before HENRY and MURPHY, Circuit Judges, and VANBEBBER, Senior District Judge.^*

VANBEBBER, Senior District Judge.

Plaintiff Linda J. Bennett filed this action against defendant Quark, Inc. alleging unlawful discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. 621-34 (ADEA). She alleges that defendant failed to promote her on two separate occasions and constructively discharged her because of her age. The district court granted summary judgment in favor of defendant on all claims. Plaintiff appeals. We exercise jurisdiction pursuant to 28 U.S.C. 1291, and affirm the district court's decision.¹

I. Standard for Review

We review the district court's grant of summary judgment de novo, applying the same legal standard as the court below. See Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1313 (10th Cir. 1999) (citation omitted). Summary judgment is appropriate if the evidence presented by the parties demonstrates "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). A "genuine" issue of fact exists if the evidence is such that a reasonable jury could resolve the issue either way. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "material" if it is essential to the proper disposition of the claim. See id. (citing same). The court must consider the record, and all reasonable inferences therefrom, in the light most favorable to the party opposing the motion. See id.

The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. See id. at 670-71 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). If the moving party will not bear the burden of persuasion at trial, that party "may make its prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Id. at 671 (citing Celotex, 477 U.S. at 325). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to go beyond the pleadings and set forth specific facts from which a reasonable jury could find in favor of the nonmoving party. See id.

II. Factual Background

In January of 1993, plaintiff began working for defendant as a human resources assistant. At that time, she was forty-one years of age. Her initial duties focused on both employee benefits and training. By late 1996, however, her duties focused primarily on benefits, and defendant changed her job title to benefits specialist.

On September 1, 1996, defendant promoted an employee named Audrey Stepp to the position of payroll supervisor/human resources generalist. Plaintiff asked Ms. Stepp if she had received a promotion. Ms. Stepp responded that, while her title had changed, she had not received a promotion.

In August of 1996, defendant posted a job opening for the position of human resources trainer. Plaintiff asked her manager, Cheryl Smith, whether this position would be a promotion for her. Ms. Smith informed plaintiff that the position would not constitute a promotion, but would be a lateral move. Plaintiff did not submit an application for the position. On January 27, 1997, approximately five months after the position was first posted, defendant promoted an employee named Leslie Green to the position. Ms. Green had submitted a formal application for the position.

In June or July of 1997, plaintiff discussed what she perceived to be pay inequities with Diane Witonsky, the Director of Human Resources. Ms. Witonsky informed plaintiff that Ms. Stepp's transition to payroll supervisor/human resources generalist had been a promotion. Ms. Witonsky also informed plaintiff that the position of human resources trainer (awarded to Ms. Green) would have constituted a promotion for plaintiff.

A short time later, defendant directed plaintiff to stop reporting to manager Cheryl Smith and instead to report to Ms. Stepp, a lower-level supervisor. This was particularly discouraging for plaintiff, because plaintiff considered Ms. Stepp to be a younger employee who was promoted above her.

Plaintiff resigned from her employment with defendant on August 11, 1997. She filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on November 10, 1997. After obtaining the right to sue, plaintiff filed a petition for relief in Colorado state court. Defendant removed the case to the United States District Court for the District of Colorado.

Plaintiff alleged that defendant failed to promote her to payroll supervisor/human resources generalist (awarded to Ms. Stepp) and/or human resources trainer (awarded to Ms. Green) on account of her age in violation of the ADEA. Plaintiff also alleged that defendant eventually made her working conditions so intolerable that she was forced to resign.

Defendant moved for summary judgment on all of plaintiff's claims. The district court granted the motion, holding that (1) plaintiff had failed to timely exhaust her administrative remedies with respect to the Stepp promotion, (2) plaintiff had failed to establish a prima facie case regarding the Green promotion, and (3) plaintiff had failed to set forth sufficient facts from which a reasonable jury could conclude that she was constructively discharged.

III. Discussion

A. Failure to Promote

1. Stepp Promotion

Plaintiff contends that the district court erred in concluding that she had failed to timely exhaust her administrative remedies regarding the Stepp promotion. The district court granted summary judgment in favor of defendant because plaintiff had failed to file a charge of discrimination with the EEOC within 300 days of the Stepp promotion. To bring a valid claim under the ADEA, a plaintiff must file a charge of discrimination with the EEOC within 300 days of the underlying discriminatory act. See 29 U.S.C. 626(d).² Plaintiff acknowledges that she did not file a charge of discrimination within 300 days of the Stepp promotion. She argues, however, that her charge, dated November 10, 1997, was nonetheless timely because (1) the 300-day limitations period was subject to equitable tolling until June or July of 1997 and (2) the Stepp promotion was part of a continuing violation that lasted until June or July of 1997.

a. Equitable Tolling

Plaintiff argues that summary judgment was inappropriate because the 300-day limitations period was subject to equitable tolling until June or July of 1997--the time at which she first learned that Ms. Stepp's transition to the position of payroll supervisor/human resources generalist was in fact a promotion.

Under proper circumstances, "[t]he timely filing of a discriminatory charge may be equitably tolled." Purrington v. Univ. of Utah, 996 F.2d 1025, 1030 (10th Cir. 1993) (citing Irwin v. Veterans Admin., 498 U.S. 89, 94-95 (1990)). This court summarized the requirements for equitable tolling of the ADEA time limits in Hulsey v. Kmart, Inc., 43 F.3d 555 (10th Cir. 1994). There, we stated:

It is well settled that equitable tolling of the ADEA is appropriate only where the circumstances of the case rise to the level of active deception where a plaintiff has been lulled into inaction by her past employer, state or federal agencies, or the courts. When such deception is alleged on the part of an employer, [the] limitations period will not be tolled unless an employee's failure to timely file results from either a deliberate design by the employer or actions that the employer should unmistakably have understood would cause the employee to delay filing [her] charge.

Id. at 557 (citations, internal ellipses and quotation marks omitted). The decision whether to equitably toll the limitations period rests within the sound discretion of the district court. See Purrington, 996 F.2d at 1030 (citing EEOC v. Gen. Lines, Inc., 865 F.2d 1555, 1558 (10th Cir. 1989) (citing McKinney v. Gannett Co., 817 F.2d 659, 670 (10th Cir. 1987))). Absent an abuse of discretion, the district court's decision will not be disturbed on appeal. See id. (citing same).

Plaintiff has failed to allege any facts or circumstances that would warrant tolling of the 300-day limitations period in this case. Plaintiff admits that Ms. Stepp's title changed to payroll supervisor/human resources trainer in September of 1996. She alleges, however, that Ms. Stepp informed her that her transition to payroll supervisor/human resources trainer was simply a title change, and not a promotion. She further alleges that she did not learn the truth about Ms. Stepp's transitionthat it was in fact a promotion--until June or July of 1997. Assuming these allegations are true, tolling of the 300-day limitations period is inappropriate.

To warrant tolling, the circumstances must rise to the level of active deception. See Hulsey, 43 F.3d at 557. Where deception by a plaintiff's employer is alleged, the evidence must show that the plaintiff's failure to timely file a charge resulted from either (1) a deliberate design by the employer or (2) actions that the employer should have unmistakably understood would cause the plaintiff to delay filing a...