Simmons v. Sykes Enterprises

• Decision Date: 02 June 2011
• Docket Number: No. 09–1558.,09–1558.
• Citation: 647 F.3d 943,112 Fair Empl.Prac.Cas. (BNA) 596
• Parties: Patricia F. SIMMONS, Plaintiff–Appellant,v.SYKES ENTERPRISES, INCORPORATED, a Florida corporation, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

647 F.3d 943

112 Fair Empl.Prac.Cas. (BNA) 596

94 Empl. Prac. Dec. P 44,189

Patricia F. SIMMONS, Plaintiff–Appellant,

v.SYKES ENTERPRISES, INCORPORATED, a Florida corporation, Defendant–Appellee.

No. 09–1558.

United States Court of Appeals, Tenth Circuit.

June 2, 2011.

Elwyn F. Schaefer (Gary B. Witt with him on the briefs), of Elwyn F. Schaefer and Associates, P.C., Denver, CO, for Plaintiff–Appellant.John W. Campbell of Constangy, Brooks & Smith, LLP, Tampa, FL, for Defendant–Appellee.Before MURPHY, McKAY, and TYMKOVICH, Circuit Judges.McKAY, Circuit Judge.

Patricia Simmons appeals from the district court's grant of summary judgment in favor of her former employer, Sykes Enterprises, on her claim of discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq. The district court concluded Ms. Simmons had failed to establish that Sykes' reason for terminating her employment was pretextual. For the following reasons, we AFFIRM.

BACKGROUND

Ms. Simmons began working for Sykes in 1997, first as a phone technician then later as a technician/assistant within the Human Resources (“HR”) Department at Sykes' Sterling, Colorado office. By all reports, Ms. Simmons was a good employee during the ten years she was employed.

Ms. Simmons alleges her work environment grew hostile in June 2007 upon the return of Persephone James as the Sterling office's site director. Shortly after returning to the Sterling office, Ms. James allegedly told Ms. Simmons in an “almost vicious” manner she thought Ms. Simmons had already retired. (Simmons Dep. 170:7–11, Aug. 7, 2008, Appellant's App. at 128.) Ms. James also allegedly told Ms. Simmons at an office party: “You better slow down because at your age you're going to have a heart attack if you keep this up.” ( Id. 173:7–9.) Ms. Simmons also alleges Amanda Owen, Sykes' Sterling HR supervisor, made hostile comments about her to other co-workers. Specifically, Ms. Owen allegedly asked another employee whether Ms. Simmons repeated herself and stated “now that Pat is getting older she seems to forget a lot and is always repeating herself.” (Gaddis Aff. ¶ 2, Aug. 14, 2008, Appellant's App. at 321.) Ms. Simmons never complained to management about either Ms. James or Ms. Owen.

In early August 2007, an aggrieved employee complained to Ms. Owen that somebody within the company had improperly disclosed the employee's confidential medical information. Ms. Owen notified Jeff Bieker, Sykes' regional HR Manager, and Mr. Bieker instructed Ms. Owen to begin interviewing those mentioned in the complaint. Shortly thereafter, Janice DiRose, Sykes' corporate employment counsel and senior director of HR compliance, was notified of the complaint. Ms. DiRose instructed Ms. James to interview and obtain written statements from those involved. Ms. James, Ms. Owen, and Mr. Bieker all participated in the investigation. They determined from initial interviews and statements that Ms. Simmons had disclosed the confidential information to another HR associate, Sharon Gaddis, who in turn disclosed it to others outside of their department.

On August 2, Ms. Gaddis answered questions and signed a statement, typed by Ms. James, implicating Ms. Simmons as the source of the confidential information. On August 7, Ms. Gaddis supplemented her statement with information suggesting the confidential information had also been disclosed in a manner independent from Ms. Simmons' conduct. Although Ms. Gaddis has since disavowed her statements, at no time during the investigation did she recant her allegations despite having the opportunity to do so.

Ms. James and Mr. Bieker twice met with Ms. Simmons to question her about the disclosure. Prior to answering their questions, Ms. Simmons read and signed a Notice of Investigation (“NOI”). The NOI informed her she would not be retaliated against for participating in the investigation but she would be subject to discipline or termination for disclosing confidential information, providing false or misleading information, or sharing any information regarding the investigation. During both interviews, Ms. Simmons denied any wrongdoing.

After Ms. James, Ms. Owen, and Mr. Bieker completed their interviews, Ms. DiRose reviewed the collected statements and personally interviewed Ms. Gaddis and Ms. Simmons. Ms. Simmons again denied having disclosed the confidential information. However, Ms. DiRose believed that, over the course of the investigation, Ms. Simmons gave inconsistent answers regarding her knowledge of the confidential information and discussed other employees' confidential medical information. During a conference call between Ms. James, Ms. Owen, Mr. Bieker, and Ms. DiRose, Mses. James and Owen recommended Ms. Simmons be terminated.¹ Ms. DiRose then recommended to Jenna Nelson, Sykes' senior vice president of HR, that Ms. Simmons be terminated, and Ms. Nelson authorized the termination.

Sykes fired both Ms. Simmons, who was sixty-two, and Ms. Gaddis, who was twenty-three. After her termination, Ms. Simmons filed a complaint with the Equal Employment Opportunity Commission. After receiving a Dismissal and Notice of Rights, she filed this lawsuit in district court. The court granted summary judgment in favor of Sykes, concluding Ms. Simmons did not establish any dispute of material fact that Sykes' stated reasons for her termination were pretext for age discrimination. This appeal followed.

DISCUSSION

We review the grant of summary judgment de novo, applying the same standards as the district court. See Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1195 (10th Cir.2008). We view the facts, and all reasonable inferences those facts support, in the light most favorable to the nonmoving party, here Ms. Simmons, see id., but we will not as a general matter consider issues that were not raised below, see United States v. Jarvis, 499 F.3d 1196, 1201 (10th Cir.2007) (citing Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)). Because our review is de novo, we need not separately address arguments that the district court erred by viewing evidence in the light most favorable to Sykes and by treating disputed issues of fact as undisputed. See Rivera v. City and Cnty. of Denver, 365 F.3d 912, 920 (10th Cir.2004). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

Under the ADEA, it is “unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a). “[T]he ordinary meaning of the ADEA's requirement that an employer took adverse action ‘because of’ age is that age was the ‘reason’ that the employer decided to act.” Gross v. FBL Fin. Servs., Inc., 557 U.S. ––––, 129 S.Ct. 2343, 2350, 174 L.Ed.2d 119 (2009). In other words, we must determine whether age was a “but-for” cause, id., or “the factor that made a difference,” Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1277 (10th Cir.2010); cf. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 41, at 265 (5th ed. 1984) (“An act or omission is not regarded as a cause of an event if the particular event would have occurred without it.”).

Ms. Simmons has not challenged the district court's holding that there is no direct evidence of discrimination, so we evaluate her ADEA claim using the three-step framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Jones, 617 F.3d at 1278–79. Under this framework, the plaintiff must initially establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its action. Id. at 802–03, 93 S.Ct. 1817. Should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. at 804, 93 S.Ct. 1817.

Pretext

Our relevant inquiry for determining pretext is “whether the employer's stated reasons were held in good faith at the time of the discharge, even if they later prove to be untrue, or whether plaintiff can show that the employer's explanation was so weak, implausible, inconsistent or incoherent that a reasonable fact finder could conclude that it was not an honestly held belief but rather was subterfuge for discrimination.” Young v. Dillon Cos., Inc., 468 F.3d 1243, 1250 (10th Cir.2006). In making this determination we “look at the facts as they appear to the person making the decision to terminate.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir.2000).

Any argument by Ms. Simmons for pretext based on whether she actually disclosed the confidential information fails to address our inquiry of whether Sykes honestly relied in good faith upon the reported inconsistencies both in Ms. Simmons' statements and between her statements and the statements of others. “Evidence that the employer should not have made the termination decision—for example, that the employer was mistaken or used poor business judgment—is not sufficient to show that the employer's explanation is unworthy of credibility.” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1169–70 (10th Cir.2007).

Turning then to the basis for Sykes' decision, it claims it relied on perceived inconsistencies in Ms. Simmons' statements, including her initial statement that she was unsure if others knew the confidential information even though she later told the...