Sanchez v. Denver Public Schools

• Decision Date: 31 December 1998
• Docket Number: No. 97-1120,97-1120
• Citation: 164 F.3d 527
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 624, 74 Empl. Prac. Dec. P 45,700, 131 Ed. Law Rep. 679, 1999 CJ C.A.R. 231 Susan SANCHEZ, Plaintiff-Appellant, v. DENVER PUBLIC SCHOOLS, Defendant-Appellee, and Denver Classroom Teacher's Association, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 527

164 F.3d 527

79 Fair Empl.Prac.Cas. (BNA) 624,

74 Empl. Prac. Dec. P 45,700, 131 Ed. Law Rep. 679,

1999 CJ C.A.R. 231

Susan SANCHEZ, Plaintiff-Appellant, v. DENVER PUBLIC SCHOOLS, Defendant-Appellee and Denver Classroom Teacher's Association, Defendant.

No. 97-1120.

United States Court of Appeals Tenth Circuit.

Dec. 31, 1998.

Elizabeth Lamb Kearney, Law Offices of Elizabeth Lamb Kearney, Denver, Colorado, for Plaintiff-Appellant.

Martin Semple (Patrick B. Mooney and John A. McNamara, with him on the brief), of Semple & Mooney, P.C., Denver, Colorado, for Defendant-Appellee.

Before SEYMOUR, Chief Judge, BALDOCK and BRISCOE, Circuit Judges.

SEYMOUR, Chief Judge.

Susan Sanchez brought this action under Title VII, 42 U.S.C. §§ 2000 et. seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., against her former employer, Denver Public Schools (DPS). The District Court granted DPS's motion for summary judgment on all claims. At issue in this appeal are Ms. Sanchez's allegations that 1) DPS transferred her to a teaching position at Beach Court elementary school in violation of Title VII and ADEA; 2) DPS retaliated against her because she filed a discrimination complaint; 3) DPS failed to place her in a Chapter I van teacher position because of her sex and age, and in retaliation for filing a discrimination complaint; 4) DPS constructively discharged her; and 5) the district court erred in denying her motion under Fed.R.Civ.P. 60(b). ¹ We affirm for the reasons set forth below. ²

I.

Ms. Sanchez began her employment with DPS in 1979. Prior thereto, she had been a nun, a teacher in Catholic schools for twenty-four years, and a principal for five. In August 1979, she became a teacher at Johnson Elementary, a position she held until the summer of 1993.

In the spring of 1993, the administration at Johnson realized that the fourth grade enrollment would be decreasing the following school year and that they would not be able to retain all three of the fourth grade teachers teaching there. Because none of the teachers volunteered to transfer, the Personnel Subcommittee, consisting of three teachers and the principal, interviewed them to decide who would be transferred. After interviewing all three candidates, the Personnel Subcommittee decided to transfer Ms. Sanchez and retain two younger, male teachers. Upset by this decision, Ms. Sanchez filed a complaint with the teacher's union, and then with the EEOC.

DPS reassigned Ms. Sanchez to a second grade teacher position at Beach Court Elementary. Ms. Sanchez's displeasure with the transfer only worsened after interacting with Beach Court's principal, Lucia Aandhal. Relations between the two started off poorly and did not improve throughout Ms. Sanchez's tenure at Beach Court. According to Ms. Sanchez, at the beginning of the first faculty meeting Ms. Aandhal introduced all the new teachers except her, and said something like, "it is so nice to have some beginning bright, young teachers in the building." Aplt.App. at 90-91. At the end of the meeting, and after prompting, Ms. Aandhal introduced Ms. Sanchez and mentioned that she was transferred from Johnson, a fact Ms. Sanchez found embarrassing.

Ms. Aandhal allegedly made several other ageist comments during the school year. In addition, Ms. Aandhal required Ms. Sanchez to bring in a doctor's note whenever she took sick leave, even though other teachers were not required to do so. Later in the year, Ms. Aandhal threatened to put Ms. Sanchez on a plan for improvement.

In April 1994, Ms. Aandhal called Ms. Sanchez into her office to determine whether she would be returning to Beach Court the next year. Although evasive at first, Ms. Sanchez eventually told Ms. Aandhal she was not planning to return. Despite Ms. Aandhal's repeated requests, Ms. Sanchez never put her intentions in writing.

During the spring of 1994, Ms. Sanchez's health deteriorated due to stress and her doctor recommended that she take a leave of absence from Beach Court. Ms. Sanchez had the administrative choice of either using her sick leave, of which she had accumulated a great deal, or taking a formal leave of absence. She chose the former.

In May 1994, DPS engaged in its annual county-wide process of reassigning teachers within the district. At that time Ms. Sanchez did not ask to be reassigned. She stated she was under the impression that she would be transferred automatically because she thought she had a one-year assignment at Beach Court. Later that summer she requested a transfer, but DPS said it would be unable to grant her one because the reassignment process had already occurred. DPS further told her she would be expected to fulfill her assignment at Beach Court.

According to Ms. Sanchez, in mid-August Estelle Urioste contacted her about a new opening as a Chapter I van teacher, a position in which a DPS teacher would drive to parochial schools to assist students with special needs. They met that day and Ms. Urioste asked Ms. Sanchez about her background, showed her one of the vans used in the program, and requested a copy of her driving record. Ms. Sanchez obtained a copy of her driving record for Ms. Urioste. Later that day, Ms. Urioste called her and told her the position would not be available until December. About a month later, Ms. Sanchez found out from a friend who was a Chapter I van teacher that DPS had filled the position with a young man, Andy Lurie. Mr. Lurie was a non-tenured, probationary teacher who had not received his Master's degree at that time.

Unable to find a position she considered suitable, Ms. Sanchez continued to take sick leave throughout the fall of 1994. During that time, DPS offered her a position as an English As a Second Language (EASL) teacher, but Ms. Sanchez declined because she had previously applied for a similar job and had been told she was not qualified for it.

As Ms. Sanchez's sick leave began to run out, she decided to opt for early retirement. She applied for early retirement in mid-December, effective January 25, 1995. The agreement could not be rescinded less than 30 days before it was to take effect. On December 30, DPS stated that it would have two openings, and that Mrs. Sanchez would have been able to take either one, except her early retirement rendered her ineligible. ³

II.

We review a grant of summary judgment de novo, "examin[ing] the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment." Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996) (citations omitted). A grant of summary judgment is appropriate if there is no genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248, 106 S.Ct. 2505.

A. Sex and Age Discrimination Claims

The plaintiff in both ADEA and Title VII cases bears the initial burden of setting forth a prima facie case of discrimination. The elements of each closely parallel the other. In either case the plaintiff must show: 1) she is a member of the class protected by the statute; 2) she suffered an adverse employment action; 3) she was qualified for the position at issue; and 4) she was treated less favorably than others not in the protected class. See Thomas v. Denny's Inc., 111 F.3d 1506, 1510 (10th Cir.1997) (race); Corneveaux v. Cuna Mut. Ins. Group, 76 F.3d 1498, 1502 (10th Cir.1996) (age); Jones v. Unisys Corp., 54 F.3d 624, 630 (10th. Cir.1995) (age); Cole v. Ruidoso Municipal Sch., 43 F.3d 1373, 1380 (10th Cir.1994) (sex). Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for the action. If the defendant does so, the plaintiff must show the defendant's proffered reasons are pretextual. See Jones, 54 F.3d at 630.

In the instant case, Ms. Sanchez alleges two counts of sex and age discrimination: one based on the transfer to Beach Court and the other on DPS's failure to place her in the Chapter I van teacher position. We consider each in turn.

1. The Beach Court Transfer

Ms. Sanchez argues the district court erred in holding that she did not establish a prima facie case of discrimination regarding her transfer to Beach Court. ⁴ In particular, she disputes the district court's finding that she suffered no adverse employment action.

The Tenth Circuit liberally defines the phrase "adverse employment action." See Gunnell v. Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir.1998); Jeffries v. Kansas, 147 F.3d 1220, 1232 (10th Cir.1998). Such actions are not simply limited to monetary losses in the form of wages or benefits. See Berry v. Stevinson Chevrolet, 74 F.3d 980, 986-87 (10th Cir.1996). Instead, we take "a case-by-case approach," examining the unique factors relevant to the situation at hand. Jeffries, 147 F.3d at 1232. Nevertheless, we will not consider "a mere inconvenience or an alteration of job responsibilities" to be an adverse employment action. Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.1993); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, ----, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998) (conduct is adverse employment action if it "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits"); Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883, 886 (7th Cir.1989) (principal's change in assignment was not an adverse employment action despite her increased commute and belief that the public perceived the transfer "as a 'nudge towards retirement' ").

We agree with the district court that Ms. Sanchez's transfer was not an adverse...