Strickland v. United Parcel Service, Inc.

• Decision Date: 24 February 2009
• Docket Number: No. 07-1082.,07-1082.
• Citation: 555 F.3d 1224
• Parties: Carole STRICKLAND, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., a Delaware corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

555 F.3d 1224

Carole STRICKLAND, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., a Delaware corporation, Defendant-Appellee.

No. 07-1082.

United States Court of Appeals, Tenth Circuit.

February 24, 2009.

Hollie L. Wieland, Sears & Swanson, P.C., Colorado Springs, CO, for Plaintiff-Appellant.

Jim Goh (Emily Hobbs-Wright with him on the brief), Holland & Hart LLP, Denver, CO, for Defendant-Appellee.

Before MURPHY, McKAY, and GORSUCH, Circuit Judges.

MURPHY, Circuit Judge.

Plaintiff-Appellant Carole Strickland brought various state and federal claims against Defendant-Appellee United Parcel Service, Inc. ("UPS") after she stopped working for UPS. The only claims at issue in this appeal are claims of retaliation for utilizing the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-2654, and sex discrimination. After Strickland presented her case at trial, the district court granted judgment as a matter of law to UPS on both claims. The district court ruled Strickland's FMLA retaliation claim failed as a matter of law because she could not prove constructive discharge since she testified she did not intend to quit when she stopped working. The district court also ruled there was no basis for an inference of sex discrimination because a female co-worker was not subject to the same mistreatment as Strickland. Strickland appeals these rulings. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse the district court on both claims and remand for a new trial on Strickland's FMLA retaliation and Title VII sex discrimination claims.

I. Background

Strickland began working for UPS as a temporary driver in 1999. She later became a permanent driver and, one year later, a salesperson. In January 2002 she was promoted to key account executive and began working under the supervision of Troy Roten.

In the fall of 2002 Strickland broke up with her long-term boyfriend. Roten believed she looked stressed and encouraged her to seek assistance through UPS's employee assistance program. Strickland testified Roten suggested she take leave to work through her personal issues. Strickland stated she did not want to go on leave, but Roten pushed for it and she eventually relented. Strickland was on leave for approximately two weeks.

The day Strickland returned from leave, Roten met with her and asked her repeatedly whether she was "100 percent" and ready to work. Immediately following this meeting, she met with Roten and the district manager, Jack Donnell. Donnell discussed Strickland's sales plan, telling her "it was unacceptable, and things needed to change, and [how she] had really let him down."

Strickland contends she was subject to increased oversight for the remainder of her tenure at UPS. She was required to attend frequent meetings and participate in phone calls with Roten and Donnell regarding her sales performance. Strickland claims the tone of these meetings was negative, with Roten warning he would get Donnell involved and Donnell saying she had let the company down. She testified the meetings interfered with her ability to do her job because they took place during selling hours and sometimes required her to drive from Colorado Springs to Englewood. Strickland was told she was required to be at 100% of all sales quotas. She was also required to sign written commitments as to which accounts she would win and was criticized for not meeting the commitments. In addition, Strickland claims Roten ignored her requests for assistance, telling her at one point he would rather help salespersons who wanted to be successful. Co-workers testified that Roten refused to answer Strickland's questions during sales meetings, although he answered questions of other sales representatives.

During a December 2002 meeting with Roten, which Donnell attended via telephone, Strickland complained she was being singled out since other employees with similar numbers were not subject to the meetings and the constant performance evaluations. Roten and Donnell became irate when she made this allegation. During this meeting Strickland also said she would like to be able to speak directly to Donnell without going through Roten. Donnell told her she was permitted to do so under the company's open door policy. After the meeting, Roten exploded, accusing Strickland of questioning his authority and telling her she was not permitted to speak with Donnell directly, notwithstanding the open door policy.

Three days later, Strickland sent an e-mail to Roten, Donnell, and a human resources representative detailing why she felt singled out following her return from leave. She also contacted Kelly Delph, an employee in the human resources department who told Strickland she would prepare a formal write-up. Strickland was later informed by Delph that nothing had been done to investigate her complaints. Strickland also asked about the possibility of a transfer and was told by Donnell she was not eligible for a transfer because transfers were only available to "successful" employees.

Strickland was not the only UPS employee who testified that Roten was a difficult supervisor. One male co-worker described Roten's managerial style as "management by fear" and detailed instances when Roten challenged his veracity and disciplined him without permitting an explanation. Another described Roten as a micro-manager. One individual, David Bishop, left UPS early in 2002. He testified he left because he felt singled out by Roten and subject to intense oversight after he returned from a temporary leave of absence due to work-related stress.

Multiple co-workers also testified, however, that Strickland was treated differently from everyone else. At the end of 2002 Strickland was between 93% and 104% of her sales quotas and was outperforming at least some of her co-workers on every measure. Strickland's co-workers were not required to attend individual meetings with Roten and Donnell or make written sales commitments even though no one was at 100% of every sales quota. One male co-worker, Paul Deaton, trailed Strickland in almost every sales measure but was not required to attend meetings to discuss his performance, was not denied assistance, and was not counseled for failing to reach 100% in every sales measure. After Strickland returned from her two-week leave of absence, she had five male co-workers and one female co-worker. The female co-worker, Penny Harper, testified she was not treated differently than the male employees, but Strickland was.

On January 15, 2003, Strickland went into Roten's office, turned in her company laptop, and informed him she was leaving. At trial, she was questioned at length regarding her state of mind at the time she stopped working. She testified she was "done," "at her wits end," and unwilling to return to that environment. She said she had no intention of returning to work for Roten. She did, however, hope to return to work for UPS in a different capacity. Strickland also testified that when she stopped working she did not believe she had "quit," "resigned," or "terminated" her employment. She also stated she did not intend at that time to end her employment relationship with UPS, and she characterized her action as "going out on a leave."

Strickland never returned to work at UPS, although in May 2003 she communicated with UPS about returning. She was offered a sales position in Denver reporting to a different supervisor. She declined this offer because UPS could not guarantee Roten would not be transferred to that facility and the position would require a longer commute. Over a year after Strickland stopped working, she was administratively terminated by UPS.

Strickland filed suit against UPS, and the parties went to trial on the following claims: retaliation for Strickland's use of medical leave, in violation of the FMLA, 29 U.S.C. § 2615 (as interpreted at 29 C.F.R. § 825.220(c)); sex discrimination, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1);¹ retaliation for opposition to sex discrimination, in violation of § 2000e-3(a); breach of contract and breach of the covenant of good faith and fair dealing.² She sought damages including, inter alia, lost wages. After Strickland presented her case the district court granted judgment as a matter of law to UPS on all claims. As for the FMLA retaliation claim, the district court ruled Strickland could not prove damages because she testified she did not quit working for UPS. Since she testified she did not quit, she could not show she was constructively discharged, which was necessary to sustain her claim for damages. The district court also granted judgment as a matter of law on the sex discrimination claims based on Penny Harper's testimony that Harper was not treated differently by Roten. The district court concluded there was no basis for an inference of sex discrimination. Strickland appeals the district court's judgment with respect to the FMLA retaliation and sex discrimination claims.

II. Discussion

A. FMLA Claim.

The district court granted judgment as a matter of law to UPS at the close of Strickland's case. As to Strickland's FMLA claim, the court ruled she had failed to prove damages because she could not show a constructive discharge. A district court's decision to grant judgment as a matter of law is reviewed de novo. Specialty Beverages, L.L.C. v. Pabst Brewing Co., 537 F.3d 1165, 1175 (10th Cir.2008). When reviewing a decision de novo, this court applies the same standard applied by the district court. Riske v. King Soopers, 366 F.3d 1085, 1088 (10th Cir.2004). A district court may only grant judgment as a matter of law when a reasonable jury would have no legally sufficient evidentiary basis to rule in favor of the nonmoving party. Fed.R.Civ.P. 50(a)(1). Judgment as a matter of law is only appropriate "if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party...