Croy v. Cobe Laboratories, Inc., No. 02-1366.

• Decision Date: 03 October 2003
• Docket Number: No. 02-1366.
• Citation: 345 F.3d 1199
• Parties: Claudia CROY, Plaintiff-Appellant, v. COBE LABORATORIES, INC., a corporation; Sorin Biomedica; COBE Cardiovascular, Inc.; and COBE Cardiovascular Division of Sorin Biomedica, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

345 F.3d 1199

Claudia CROY, Plaintiff-Appellant, v. COBE LABORATORIES, INC., a corporation; Sorin Biomedica; COBE Cardiovascular, Inc.; and COBE Cardiovascular Division of Sorin Biomedica, Defendants-Appellees.

No. 02-1366.

United States Court of Appeals, Tenth Circuit.

Filed October 3, 2003.

COPYRIGHT MATERIAL OMITTED

John R. Olsen of Olsen & Brown, L.L.C., Niwot, Colorado, for Plaintiff-Appellant.

Kris J. Kostolansky of Rothgerber Johnson & Lyons LLP, Denver, Colorado (Susan S. Sperber with him on the brief) for Defendants-Appellees Sorin Biomedica, COBE Cardiovascular, Inc., and COBE Cardiovascular Division of Sorin Biomedica.

K. Preston Oade, Jr., of Holme, Roberts & Owen, LLP, Denver, Colorado, for Defendant-Appellee COBE Laboratories, Inc.

Before HENRY and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge.

McKAY, Circuit Judge.

This is an appeal of an action alleging discrimination under the Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (1995); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and a breach of contract. Plaintiff-Appellant, Ms. Claudia Croy, alleges that her former employers (collectively "Appellees") discriminated against her because of her gender and failed to accommodate her multiple sclerosis disability. Appellant also alleges that Appellees breached a contract in which she was promised a promotion.

The district court initially granted summary judgment in favor of Appellees on the discrimination claim, concluding that the claim was time-barred because no adverse action occurred during the limitations period and also that the continuing violations doctrine could not save the claim. The district court then granted summary judgment on the disability claim, concluding that Appellant had not alleged an impairment of a major life function. Furthermore, the district court denied summary judgment on a retaliation claim (which has not been pursued by Appellant) and the breach of contract claim, concluding that genuine issues of material fact existed.

Pursuant to a Motion for Clarification by Appellees, the district court reversed its denial of summary judgment on the retaliation claim and granted summary judgment to Appellees. Consequently, the district court granted the Motion for Clarification and stated:

In accordance therewith, the Court's Order of May 3, 2002, which granted in part and denied in part Defendant's Motions for Summary Judgment is REVERSED to the extent that it denied summary judgment on the retaliation claim. The record should reflect that Defendant's Motions for Summary Judgment are now GRANTED as to all claims, including the retaliation claim.

Order of August 6, 2002, at 7.

It is unclear whether the district court intended to reverse its prior decision to deny summary judgment on the contract claim or whether it simply forgot that it had denied summary judgment on that claim. In any case, the Order of August 6, 2002, resulted in a final disposition of all of Appellant's claims. Appellant filed a timely appeal, seeking review of the grant of summary judgment on the discrimination, disability, and contract claims.

We review grants of summary judgment de novo to determine whether any genuine issue of material fact exists, viewing all evidence and any reasonable inferences that might be drawn therefrom in the light most favorable to the nonmoving party. Dye v. United States, 121 F.3d 1399, 1403-04 (10th Cir.1997); Richmond v. ONEOK, 120 F.3d 205, 208 (10th Cir.1997). However, the nonmovant must establish, at a minimum, "an inference of the existence of each element essential to the case." Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir.1994).

In her Title VII discrimination claim, Appellant asserts that she was repeatedly denied promotions because of her gender. Specifically, she alleges that she was first denied a promotion in 1988 because of her gender. Following the denial of that promotion, Appellant filed an EEOC charge and received a "right to sue" letter, but did not file suit. Appellant alleges further specific instances of failure to promote in July 1996, January 1998, June 1999, June 2000, and January 2001. She also claims that she was continually denied promotions even after the specific denials.

To avoid summary judgment on the Title VII discrimination claim, Appellant must show that she filed an EEOC charge within 300 days after the alleged unlawful discrimination. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). In addition, Appellant must show that she filed suit within ninety days of receipt of the determination letter from the EEOC. See Jackson v. Continental Cargo-Denver, 183 F.3d 1186, 1187 (10th Cir.1999). These timing requirements are prerequisites to a civil suit. See id.

As the district court explained, it is undisputed that Appellant did not file an EEOC complaint within 300 days of the decisions not to promote her in July 1996 and January 1998. It is also undisputed that Appellant did not file a civil suit within ninety days of receiving her "right to sue" letter in 1989. However, Appellant argues that her claims are saved by the continuing-violations doctrine.

In this circuit, we once held that in certain circumstances the claims of discrimination alleging incidents which occurred outside the time limitations may survive if the various acts constitute a continuing pattern of discrimination. Purrington v. University of Utah, 996 F.2d 1025, 1028 (10th Cir.1993) (abrogated by Morgan). We originally held that the continuing-violations doctrine may be invoked either by showing "(1) a series of related acts taken against a single individual, one or more of which falls within the limitations period, or (2) the maintenance of a company-wide policy of discrimination both before and during the limitations period." Id. The Supreme Court changed this rule somewhat in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), after the district court's initial ruling in this case but prior to its final order. The Supreme Court explained that discrete acts of discrimination are not actionable if they fall outside the limitations period, even if they are related to acts which fall within the limitations period. Id. at 114-15, 122 S.Ct. 2061. The Court stated that since discrete acts are easily identifiable and individually actionable, acts that occurred outside of the limitations period, even though related to those occurring within the period, are not actionable. Id. at 114, 122 S.Ct. 2061. The Court specifically mentioned a failure to promote as the type of discrete act of discrimination which is only actionable if it occurred within the limitations period. Id. However, the Court also recognized that certain discrimination claims, such as hostile environment claims, "are different in kind from discrete acts. Their very nature involves repeated conduct." Id. at 115, 122 S.Ct. 2061. In such cases, the Court explained, "[t]he `unlawful employment practice' therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Id. In such cases, "[p]rovided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id. at 117, 122 S.Ct. 2061.

Appellant has alleged specific instances of discrimination in the form of failures to promote her in particular circumstances. We agree with the district court that, to be actionable, these instances must have occurred within the limitations period. However, while Appellant has not specifically alleged a hostile work environment, she has alleged the existence of a "glass ceiling" on the advancement of female employees. This "glass ceiling" claim is more akin to a hostile environment claim than a discrete act claim. Appellant alleges that there was a continuous failure to promote her, which "did not involve discrete acts that could or should have triggered any obligation of Croy to complain to the EEOC." Aplt. Br. at 33.

Because this claim is akin to a hostile environment claim, it is appropriate to look to the entire time period of alleged discrimination in order to determine liability. As the Supreme Court explained in Morgan, "the statute [does not] bar an employee from using the prior acts as background evidence in support of a timely claim." 536 U.S. at 113, 122 S.Ct. 2061.

Nevertheless, the Court still requires that, even in hostile environment claims, some (or at least one) of the component acts underlying the claim must occur within the limitations period. The district court concluded that Appellant had not shown any specific act of discrimination within the limitations period. As the district court explained, "[t]he actual alleged failures to promote occurred in 1996 and 1998, and `[a]n employer's refusal to undo a discriminatory decision is not a fresh act of discrimination.'" Order of May 3, 2002, at 8 (quoting Lever v. Northwestern Univ., 979 F.2d 552, 556 (7th Cir. 1992)).

Appellant contends that she suffered discrete failures to promote in June 1999, June 2000, and January 2001 in connection with regularly-scheduled "Wage Reviews." Aplt. Br. at 34. However, Appellant has not shown that these performance evaluations resulted in "a significant change in employment status, such as hiring, firing, failing to promote, a reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Sanchez v. Denver Public Schools, 164 F.3d 527, 532 (10th Cir.1998). She has merely shown that she received regularly scheduled "Wage Reviews" from which she received wage increases. She has not shown that the evaluations were failures to promote her.

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