Buchanan v. Sherrill
| Citation | 51 F.3d 227 |
| Decision Date | 31 March 1995 |
| Docket Number | No. 94-5093,94-5093 |
| Parties | 67 Fair Empl.Prac.Cas. (BNA) 713 Juanita BUCHANAN, Plaintiff-Appellant, v. Penny SHERRILL, individually and as owner of Autex Foods, Inc., a Tennessee Corporation, doing business as Shoney's Restaurant; Shoney's, Inc., a Tennessee Corporation and the franchisor of Autex Foods, Inc., a Tennessee Corporation; Mike Gorham, individually and as a manager of Autex Foods, Inc.; Ed Fisher, individually and as a manager of Autex Foods, Inc.; Trey Gillette, individually and as a manager of Autex Foods, Inc.; Steve Creed, individually and as a former president of Autex Foods, Inc., a Tennessee Corporation, Defendants, Autex Foods, Inc., a Tennessee corporation, doing business as Shoney's Restaurant, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert L. Briggs, David D. Smith of Briggs and Smith, Tulsa, OK, for plaintiff-appellant.
Reuben Davis, Frederic N. Schneider, III, Shane M. Egan, of Boone, Smith, Davis, Hurst & Dickman, Tulsa, OK, for defendant-appellee.
Before KELLY and SETH, Circuit Judges, and KANE, * Senior District Judge.
Plaintiff Juanita Buchanan appeals from the grant of summary judgment in favor of defendant Autex Foods, Inc. on her six claims related to alleged sexual harassment and constructive discharge from her job at Shoney's Restaurant. We have jurisdiction under 28 U.S.C. Sec. 1291.
Plaintiff raises four issues on appeal: (1) the district court abused its discretion in denying an enlargement of time in which to respond to defendant's motion for summary judgment; (2) the district court applied the wrong standard of review to the motion for summary judgment; (3) the district court erred in holding that constructive discharge is not a recognized cause of action in Oklahoma; and (4) the district court abused its discretion in denying plaintiff post-judgment relief. 1
We review the denial of a motion for extension of time made under Fed.R.Civ.P. 6(b)(1) for abuse of discretion. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 895-96 & n. 5, 110 S.Ct. 3177, 3192-93 & n. 5, 111 L.Ed.2d 695 (1990). Plaintiff first argues that defendant did not comply with Fed.R.Civ.P. 5, in that it served the motion for summary judgment only on plaintiff's attorney Rabon Martin, who had only recently entered his appearance, and not on Jefferson Briggs, who had represented plaintiff from the outset. Plaintiff argues that Rule 5 required service on both of her attorneys of record. This argument is without merit because Rule 5 requires service on all parties, not on all attorneys. Daniel Int'l Corp. v. Fischbach & Moore, Inc., 916 F.2d 1061, 1063 (5th Cir.1990). Plaintiff also contends the motion for summary judgment should have been struck because it contains no concise statement of undisputed facts as required by Rule 15(B) of the Local Rules of the United States District Court for the Northern District of Oklahoma. We agree with the district judge, however, that the motion contains a concise statement of facts, even though they are not numbered as required by Local Rule 15. Therefore, we conclude the district court did not abuse its discretion in denying plaintiff's motion for an extension of time.
We review the grant of summary judgment de novo to determine whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The evidence must be viewed in the light most favorable to the nonmoving party, Frandsen v. Westinghouse Corp., 46 F.3d 975, 977 (10th Cir.1995), even when it is produced by the moving party, see Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569-70 (10th Cir.1994).
Plaintiff began working for Shoney's in October 1989. In June 1990, plaintiff fell at work, injuring herself. She took a leave of absence from September 1990 until May 15, 1991, and filed a worker's compensation claim for her injuries. After her return to work, plaintiff complained of sexual harassment in the workplace and that defendant was treating her badly due to her worker's compensation claim. In addition, a black cook complained that plaintiff uttered a racial slur toward him. Based on these complaints, defendant arranged to transfer plaintiff to another restaurant. She did not report to work at the transfer location but, instead, resigned on August 4, 1991.
Plaintiff contends that defendant created a sexually hostile work environment after she filed her worker's compensation claim, in order to cause her to quit her job. She asserted six claims--two under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e to 2000e-17, for sexual harassment/hostile work environment and gender-based discrimination; a claim for constructive retaliatory discharge under Okla.Stat. tit. 85, Sec. 5; a claim for wrongful termination of employment in violation of public policy, as recognized in Burk v. K-Mart Corp., 770 P.2d 24, 28 (Okla.1989); a claim for breach of an employment contract based on a claim for vacation pay; and a claim for intentional infliction of emotional distress.
Based upon our review of the record, we conclude that the district court did not apply the wrong standard of review to defendant's motion for summary judgment. Plaintiff's Title VII claims fail because, regardless of the evidence of sexual harassment or gender-based discrimination, it is undisputed that defendant had arranged to transfer plaintiff to another restaurant--thus ending the alleged harassment or discrimination--but she quit her job anyway. Appellant's App. at 65-66; cf. Saxton v. AT & T, 10 F.3d 526, 535 (7th Cir.1993) (). There was no evidence properly before the district court from which to infer that the harassment would have continued at plaintiff's new place of employment. Id.
Plaintiff's state-law claim of constructive retaliatory discharge fails for the same reason. Constructive discharge is now a recognized cause of action in Oklahoma, at least when the plaintiff's employment has terminated. Wilson v. Hess-Sweitzer & Brant, Inc., 864 P.2d 1279, 1284 (Okla.1993) (discussing Okla.Stat. tit. 85, Sec. 5). As a result, the district court's holding to the contrary cannot stand. In addition, to the extent Hooks v. Diamond Crystal Specialty Foods, Inc., 997 F.2d 793, 803 (10th Cir.1993), upon which the district court relied, also holds otherwise, it is no longer operative.
Nevertheless, under Oklahoma law, a "[c]onstructive discharge occurs when an employer deliberately makes or allows the employee's working conditions to become so intolerable that the employee has no choice but to quit." Hess-Sweitzer & Brant, 864 P.2d at 1283. "The test is whether a reasonable person would view the working conditions as intolerable and would feel compelled to resign." Id. The undisputed evidence shows that plaintiff refused a transfer out of the objectionable workplace. Therefore, no reasonable person could find that plaintiff "ha[d] no choice but to quit." Id.
Plaintiff's claim for termination of employment "contrary to a clear mandate of public policy as articulated by constitutional, statutory, or decisional law," Burk, 770...
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...v. Diamond Crystal Specialty Foods, Inc., 997 F.2d 793, 798 (10th Cir.1993), overruled in part on other grounds, Buchanan v. Sherrill, 51 F.3d 227, 229 (10th Cir.1995). On the other hand, should the plaintiff come forth with a prima facie case and evidence that the defendant's reasons are p......
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...v. Diamond Crystal Specialty Foods, Inc., 997 F.2d 793, 798 (10th Cir.1993), overruled in part on other grounds, Buchanan v. Sherrill, 51 F.3d 227, 229 (10th Cir.1995). On the other hand, should the plaintiff come forth with a prima facie case and evidence that the defendant's reasons are p......
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Deghand v. Wal-Mart Stores, Inc.
...v. Diamond Crystal Specialty Foods, Inc., 997 F.2d 793, 798 (10th Cir.1993), overruled in part on other grounds, Buchanan v. Sherrill, 51 F.3d 227, 229 (10th Cir.1995). On the other hand, should the plaintiff come forth with a prima facie case and evidence that the defendant's reasons are p......
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APPENDIX 5 • SAMPLE EMPLOYMENT LAW JURY INSTRUCTIONS
...or is required to utilize a lesser degree of skill than his previous assignment"), overruled on other grounds by Buchanan v. Sherrill, 51 F.3d 227, 229 (10th Cir. 1995).RETALIATION - CAUSATION In order to prove that Plaintiff's employer would not have taken the challenged employment decisio......