Mackenzie v. City and County of Denver
| Decision Date | 14 July 2005 |
| Docket Number | No. 02-1468.,02-1468. |
| Citation | 414 F.3d 1266 |
| Parties | Rita L. MACKENZIE, Plaintiff-Appellant, v. DENVER, CITY AND COUNTY OF, a municipal corporation; Department of Health & Hospitals, an agency of the executive branch of the City and County of Denver, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Barry D. Roseman, Roseman & Kazmierski, LLC, Denver, CO, for Plaintiff-Appellant.
R. Craig Hess, Assistant City Attorney (Helen Eckardt Raabe, City Attorney, and Karla J. Pierce, Assistant City Attorney, with him on the briefs) for Defendants-Appellees.
Before HARTZ, McKAY and O'BRIEN, Circuit Judges.
Rita MacKenzie (MacKenzie) appeals from a grant of summary judgment in favor of her former employer, the City and County of Denver (the City). MacKenzie alleges the City discriminated against her because of her disability in violation of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101, et. seq. She also alleges the City discriminated on the basis of her age by (1) disparate disciplinary treatment; (2) denying her a promotion; and (3) retaliating against her for protected activities, all in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et. seq. Finally, MacKenzie contends she was subjected to a hostile work environment and constructively discharged from her employment. For the reasons stated below and exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
At the time she filed her complaint in the district court, MacKenzie, a white female, was 64 years old.1 She began work with the City at the Denver Health and Hospital Authority in March 1986. In November 1988, she began work as a clinic clerk and receptionist at Denver Health's Infectious Diseases Clinic (ID Clinic).2 Supervised by Patrick Gourley (Gourley), the nursing program manager, MacKenzie was expected to answer telephones in a professional and courteous manner, treat patients and visitors of the clinic with respect, and exercise good interpersonal skills with co-workers, patients and the public. According to her annual performance evaluations, MacKenzie succeeded scoring above-average (strong) ratings from 1990 through 1993. In 1994, however, MacKenzie only received a "meets expectations" rating, suggesting only a satisfactory performance. A year later, on July 5, 1995, MacKenzie's annual performance slipped even lower when she received a "below expectations" rating. Her evaluations suggested MacKenzie's declining performance was tied to an apparent increase in rudeness toward staff and patients.
Specifically, in the fall of 1994, three patients, a nurse, and a number of physicians, social workers and other clinic staff complained to Gourley regarding MacKenzies rudeness. This resulted in a verbal reprimand from Gourley on October 28, 1994.3 MacKenzie denied ever being rude.4 As a follow-up, Karen Martinez (Martinez), clerical staff supervisor, and Mari Rogers (Rogers), Gourley's direct supervisor, counseled MacKenzie on her communication skills.
On November 18, 1994, MacKenzie filed a grievance with the City's personnel department alleging Gourley had made inappropriate age-related remarks. In particular, MacKenzie alleged that between March 1993 and November 9, 1994, Gourley subjected her to a series of derogatory, age-related remarks, calling her "an old lady," "senile" and "slow." In addition to comments concerning her general age, MacKenzie also claims that a patient told her Gourley said if anything went wrong in the clinic, "[j]ust blame Rita." (R. at 277.)
While an investigation confirmed MacKenzie's account of the events, it also revealed she leveled a number of age-related comments towards Gourley, calling him an "old man" and commenting about his gray hair. MacKenzie admitted to making such comments. The grievance was denied by the department director. MacKenzie appealed that decision, but her appeal was rejected as untimely.5 Even so, Rogers instructed Gourley never to make comments about MacKenzie's age even if she attempted to engage in bantering. Rogers also arranged for Gourley to apologize to MacKenzie in the presence of Rogers and another witness. By MacKenzie's own account, Gourley never again made inappropriate comments. In fact, for some months later, Gourley refrained from communicating with MacKenzie at all, which precipitated another grievance by MacKenzie filed on February 23, 1995. She was also active in the interim.
On December 16, 1994, MacKenzie filed a grievance against Gourley, alleging retaliation for her November 1994 grievance against him. Gourley's alleged retaliation took the form of re-arranging MacKenzie's office furniture (apparently increasing the glare on her computer screen) and temporarily adjusting her work schedule for the forthcoming Christmas holiday season, which "interfered" with her afternoon exercise routine. According to the City, Gourley merely adjusted MacKenzie's desk forty-five degrees to accommodate patient flow from the treatment area to the restroom. As to the increased glare on her computer screen, the City promptly installed a glare-reduction screen, which, by MacKenzie's own admission, helped alleviate the problem. With regard to MacKenzie's complaint about her schedule being changed, the City asserts it was done to accommodate a co-worker's absence during the holiday season. The City, however, offered MacKenzie several options to accommodate her exercise routine, including expanding her lunch breaks to allow her to exercise and permitting her to take "walking breaks" during the day.
On December 22, 1994, Rogers again counseled MacKenzie on her substandard communication skills. A week later, on January 3, 1995, Gourley received two more complaints about MacKenzie's rude behavior, this time from a patient and his physician. Before any discipline was meted out for these latest complaints, Gourley received yet another complaint. This complaint, received January 24, 1995, concerned MacKenzie's treatment of a clinic patient. A follow-up investigation confirmed her rudeness toward this patient and, on February 16, 1995, MacKenzie was issued a written reprimand for her behavior.
On March 20, 1995, Rogers and Martinez met with MacKenzie to discuss her interpersonal problems. On March 29, 1995, MacKenzie filed a formal charge of discrimination against the City with the EEOC alleging age and disability discrimination, wrongful denial of promotion, retaliation and harassment.
Two more complaints concerning MacKenzie's rudeness were received from patients on May 9, 1995, and May 22, 1995. A follow-up investigation into these complaints confirmed MacKenzie's unprofessional behavior.6 MacKenzie was offered an opportunity to explain her side of the story on June 23, 1995. MacKenzie was suspended on June 29, 1995, effective July 6, 1995, for her misconduct related to the May 22, 1995 complaint.
On June 8, 1995, another patient complaint was filed against MacKenzie. On September 15, 1995, MacKenzie was given an opportunity to respond to these charges. On October 11, 1995, MacKenzie was suspended for her misconduct relating to this latest complaint.
MacKenzie, in a consolidated appeal to the City, sought review of both her "below expectations" performance evaluation rating and one-day suspension, arguing they were the product of Gourley's harassment and retaliation toward her. On December 5, 1995, after reviewing MacKenzie's various grievances, the hearing officer concluded she had failed to establish her poor performance evaluation was the product of harassment or retaliation by Gourley. The hearing officer also concluded the City took the appropriate steps in progressively disciplining her and her suspension was justified.
On September 1, 1995, Rogers and Martinez transferred MacKenzie to the Tuberculosis Clinic (TB Clinic). Her new supervisor, Marybeth O'Neil, observed a new diligence in MacKenzie's work and on May 2, 1997, promoted her to senior support services clerk. Some time after her promotion, however, new complaints about MacKenzie's behavior surfaced, this time from patients who had no contact with those in the ID Clinic. Specifically, on October 9, 1998, MacKenzie received a verbal warning for being rude with a patient on the telephone, and on October 29, 1998, MacKenzie was issued a written reprimand for inappropriate behavior with a patient.7 MacKenzie ultimately resigned on December 28, 1998: the resignation became effective January 1, 1999.
In November 1993, a specialty clerk position opened up in the administration department of Denver Health. While still at the ID Clinic, MacKenzie applied for the position. The particular job responsibilities included (1) processing employee requisitions, (2) processing payroll and performing payroll-related tasks, and (3) keeping track of travel-related matters. Despite MacKenzie's past payroll experience, Martinez did not offer her the position. Instead, Rosalinda Romero, a younger candidate, was chosen. The City claims it chose Romero because of (1) her strong work ethic, (2) her experience in materials management/payroll — precisely the type of experience sought for the position, (3) her proficient interpersonal skills, and (4) the fact she had previously worked in the same department.8 Because she did not receive the promotion, MacKenzie included a failure-to-promote claim in her March 29, 1995 discrimination charge to the EEOC.
In 1990, MacKenzie suffered an angina attack9 and in 1993, a heart attack. Despite those circumstances, MacKenzie admits she was able to perform her job without restrictions and was capable of performing an entire class of jobs, evidenced by her repeated applications for various specialty clerk positions without requesting an accommodation.10 Moreover,...
To continue reading
Request your trial
-
Cirocco v. McMahon
...be expected to follow the charge of discrimination submitted to the EEOC.’ " Id. at 1186 (quoting MacKenzie v. City & Cty. of Denver , 414 F.3d 1266, 1274 (10th Cir. 2005) ; further citation omitted). Here, defendant concedes that plaintiff has satisfied step one. But, defendant contends th......
-
Jones v. United Parcel Service, Inc.
...exercise jurisdiction over plaintiff's ADA claims, he must first exhaust his EEOC administrative remedies. MacKenzie v. City & County of Denver, 414 F.3d 1266, 1274 (10th Cir.2005). Defendant argues that because plaintiff never filed a charge of discrimination, he did not exhaust administra......
-
Gerald v. Locksley
...that can reasonably be expected to follow the charge of discrimination submitted to the EEOC." MacKenzie v. City & County of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005). "We liberally construe charges filed with the EEOC in determining whether administrative remedies have been exhausted as......
-
Coleman v. Blue Cross Blue Shield of Kan.
...more than three years before she was terminated or before plaintiff alleges any adverse action was taken against her. In McKinzie v. Sprint/United Management Co.,62 the court found that defendant had not interfered with plaintiff's FMLA rights when she was granted leave whenever she request......
-
The law
...teasing and o൵hand comments about “old ladies,” did not meet the standards for liability. Accord Mackenzie v. City and County of Denver , 414 F.3d 1266, 1280 (10th Cir. 2005) (mutual bantering about age between employee and supervisor shows the workplace was not objectively or subjectively ......
-
Age discrimination
...about disparate treatment is not enough to establish a claim of discrimination under the ADEA. MacKenzie v. City and County of Denver , 414 F.3d 1266, 1277 (10th Cir. 2005). D.C.: The D.C. Circuit found that, where the defendant employer articulated the legitimate business reason as “poor p......