Panis v. Mission Hills Bank, N.A.

• Decision Date: 31 July 1995
• Docket Number: No. 94-3132,94-3132
• Citation: 60 F.3d 1486
• Parties: 70 Fair Empl.Prac.Cas. (BNA) 625, 32 Fed.R.Serv.3d 867 Robin Floyd PANIS, Plaintiff/Appellant, v. MISSION HILLS BANK, N.A., et al., Defendants/Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1486

60 F.3d 1486

70 Fair Empl.Prac.Cas. (BNA) 625, 32

Fed.R.Serv.3d 867

Robin Floyd PANIS, Plaintiff/Appellant, v. MISSION HILLS BANK, N.A., et al., Defendants/Appellees.

No. 94-3132.

United States Court of Appeals, Tenth Circuit.

July 31, 1995.

Dan E. Turner (Phillip L. Turner, with him on the brief), Topeka, KS, for plaintiff/appellant.

Paul E. Donnelly of Stinson, Mag & Fizzell, P.C. (David L. Heinemann and Scott C. Hecht, with him on the brief), Kansas City, MO, for defendants/appellees.

Before MOORE and EBEL, Circuit Judges, and H. DALE COOK ^*, Senior District Judge.

H. DALE COOK, Senior District Judge.

Robin Floyd Panis brought this action against Mission Hills Bank, N.A. (Bank) and its officers and directors, alleging that defendants discriminated against her on the basis of sex in violation of 42 U.S.C. Sec. 2000e et seq. Panis' complaint also alleged causes of action under Kansas law for conversion and breach of an implied-in-fact employment contract. The district court dismissed all of Panis' claims in granting defendants' motion for summary judgment. Panis now appeals from that grant of summary judgment and various procedural errors allegedly made by the district court. We affirm.

I. Background

Panis is a married white female residing in Kansas City, Missouri. Panis has been married to Salvadore O. Panis ("Sal Panis") since April, 1987. From 1975 through April, 1990, Sal Panis was the manager of the "Garden Bank" branch of United Missouri Bank (UMB) in downtown Kansas City, Missouri.

Panis was employed by defendant Bank in May, 1988 as an executive banking representative. In March, 1989, Panis was appointed assistant cashier at the Bank.

On November 27, 1990, Sal Panis was charged with seven separate counts of executing a scheme to defraud UMB. ¹ The Kansas City Star reported that Sal Panis had misappropriated between $77,000 and $100,000 from an elderly UMB customer. Sal Panis allegedly persuaded the UMB customer to invest in non-existent bonds and securities and to purchase cashier's checks made out to "Sinap" or "Sinap Enterprises" ("Sinap" is Panis spelled backwards). Neither the Star article nor the television news reports of Sal Panis' indictment mentioned Panis or her employment at the Bank.

On November 28, 1990, the Bank's officers and some of its directors learned of Sal Panis' indictment from the Star article or from the morning television news reports. The Bank officers and one director met that morning to discuss the potential impact that Sal Panis' indictment might have on the Bank's customers. The officers feared that the Bank customers would connect Panis to Sal Panis, and the Bank might thereby risk losing customer confidence and business. The officers advocated firing Panis that day, but the director proposed that Panis be placed on a leave of absence until the entire Bank Board of Directors could consider the matter. Panis' leave of absence began on November 28.

Prior to November 26, 1990, Panis had been promised a raise, which was to be retroactive to November 1, 1990. On November 26, 1990, Panis' supervisor, defendant Leon Rupp, authorized her pay raise on the expectation that Panis would receive her performance appraisal before the increase was reflected in her paycheck. The information to increase Panis' pay was electronically transferred to the Bank's payroll preparer on November 27, 1990. A pay statement was issued to Panis showing the increased salary. On November 28, 1990, after defendants learned of Sal Panis' indictment and placed Panis on full-pay leave, defendant Rupp directed the Bank's payroll preparer to "back out" the increased funds from Panis' deposited paycheck. Pursuant to Rupp's instructions, the payroll preparer used a three-way debit-credit form on November 30 to manually withdraw the increased amount from Panis' account, and then credited that account with the amount representing Panis' previous salary.

When the Board members met on December 18, 1990, they discussed whether Panis could be placed in a less responsible position at the Bank. Several directors expressed fear of the Bank's loss of customer confidence if Panis continued to work there. The small number of the Bank's staff also made it unlikely that another position could be offered to Panis.

One director raised the issue of whether the Board would view the termination issue in the same manner if the roles were reversed and a male officer's wife had been indicted. After discussion, all Board members were satisfied that the Board would have come to the same conclusion had the roles been reversed. The Board concluded that its best interest lay in terminating Panis' employment. One Board member suggested that Panis' accounts be audited. That audit found no irregularities in Panis' accounts.

The Bank's president called Panis on December 26, 1990, and offered her the opportunity to resign. Panis declined to resign, and the Bank then terminated her employment.

On April 1, 1991, Panis filed a charge of sex discrimination with the Kansas Commission of Civil Rights (KCCR). Panis' charge of discrimination named "Mission Hills Bank and its representatives" as respondents, but did not identify by name or title any of the "representatives." After investigation, the KCCR advised Panis that her case was being "administratively closed" and placed in KCCR's "inactive files." Panis then requested a right-to-sue letter.

II. Discussion

A. Summary Judgment Standard of Review

We review de novo the district court's grant of summary judgment and apply the same standard used by the district court. Applied Genetics Int'l. Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). We view the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Deepwater Invs. Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991).

Under Rule 56(c), the moving party has the initial responsibility to show that "there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). If the moving party meets this requirement, the burden shifts to the nonmoving party to make a showing sufficient to establish that there is a genuine issue of material fact regarding "the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552. The nonmoving party may not rest upon "the mere allegations or denials of [her] pleading...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The nonmoving party must go beyond the pleadings and establish, through admissible evidence, that there is a genuine issue of material fact that must be resolved by the trier of fact. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.

B. Sex Discrimination Claim

In granting summary judgment for the defendants, the district court found that Panis had not presented any evidence that defendants' termination of her employment was motivated by her gender. The district court also found that, under the burden allocation scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), defendants had articulated a legitimate, nondiscriminatory reason for discharging Panis when they stated that "[i]t was the conclusion of the Board of Directors that, because of her husband's actions, Ms. Panis' credibility with customers and Bank employees could hereafter be questioned concerning the safety of funds." The district court further found that Panis had not shown that defendants' reason for discharging her was a pretext for discrimination. The district court concluded that Panis' discharge because of the publicity surrounding her husband's illegal activities did not support a finding that she was discharged on the basis of her sex.

On appeal, Panis criticizes the district court's finding that defendants produced a legitimate, nondiscriminatory reason for discharging her. Because defendants did not conduct an investigation of either Panis or the impact, if any, of the indictment publicity upon the Bank's customers, Panis argues that defendants failed to justify, with objective evidence, their assumption that Panis' own credibility should be questioned. Without such justification, Panis suggests defendants' reasons were pretext and that it is more likely that defendants relied on a sexual stereotype that a woman's character traits reflect those of her husband. According to Panis, the district court erred in not recognizing the presence of that stereotype when finding defendants' discharge of Panis did not constitute sex discrimination.

Panis misunderstands the nature of defendants' burden in the three part burden shifting format set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972). Once the plaintiff has established a prima facie case, the burden of production shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for the employee's discharge. Id. at 802, 93 S.Ct. at 1824; St. Mary's Honor Center v. Hicks, --- U.S. ----, ----, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993). To carry its burden of production, a defendant need only:

articulate through some proof a facially nondiscriminatory reason for...