Barone v. United Airlines, Inc., No. 08-1348 (10th Cir. Dec. 7, 2009)

By Paul Mollica

A thorough opinion concerning “adverse employment action” and “constructive discharge,” and a dramatic set of events, regrettably goes unpublished in the Tenth Circuit, but you can read about it here.

Barone v. United Airlines, Inc., No. 08-1348 (10th Cir. Dec. 7, 2009): A female manager in United’s Denver station, in her role of auditing pay records, discovered what she believed to be evidence that the company was coding male ramp organization at a discriminatory, higher rate. Her manager (named Sprague) tried to shut down the investigation. He later allegedly promoted a male employee to a newly-created position and gave him a raise, in the manager’s deathless words, “because he’s a man.” According to the plaintiff’s summary judgment record, “in 2000, Sprague “took [her] in a van and drove [her] around the concourse and threatened’ Barone that if she ‘were to ever go over his head again there would be serious consequences.'”

After a series of disputes about alleged sex discrimination, despite a history of good performance evaluations for plaintiff, Sprague called her into a meeting:

“[H]e requested that I come and meet him in his office. When I got there, [Senior Human Resources Generalist] Jeanne Nelli was there.

“And he said to me that he had thought long and hard about his decision, and it was the hardest decision he ever had to make. He said: Here are your two choices: You can either move to Orange County as a part-time customer service agent, or you can resign from the company. . . .

Then, “[b]efore leaving, Sprague ‘slid a blank piece of paper [Barone’s] way and said to write out [her] resignation.'” After Sprague exited the meeting, the HR generalist “repeated that Barone could either resign from the company or go to Orange County, id. at 424, and further confirmed that ‘[t]here’s nothing I can do; they contacted me first, and the station made up their mind,'” Barone resigned and then commenced a Title VII and ADEA discrimination and retaliation lawsuit. (The ADEA claims were later voluntarily dismissed.)

The district court granted summary judgment on the ground that the employee failed to set out an “adverse employment action.” The Tenth Circuit reverses.

The panel finds that under both a discrimination and retaliation theory, the

“Despite Barone’s allegations that she was removed from management, demoted, transferred, and reduced to part-time status, the district court concluded that she could not prove that any such adverse employment action occurred, especially because she subsequently resigned as a full-time management employee. We disagree with this analysis because it fails to view the evidence in the light most favorable to Barone, and it fails to assess the immediate impact United’s ultimatum had upon Barone’s employment.

“In the light most favorable to Barone, United presented her with two definite and clear options on August 17, 2006: she could ‘either move to Orange County as a part-time customer service agent, or [she could] resign from the company.’ App. 130-31. We conclude that forcing a management employee with a successful performance record to ‘choose’ between resigning and relocating across several states to continue her employment in a part-time and non-management capacity effectively changed Barone’s employment status. United compelled Barone to choose between two undesirable options. Whichever option Barone chose, it would significantly, and immediately, alter her ‘compensation, terms, conditions, [and] privileges of employment.’ 42 U.S.C. § 2000e-2(a)(1).”

Under the retaliation theory, the panel holds that under the Burlington Northern case, the standard for “adverseness” is, if anything, lighter. (The panel also holds that there was a genuine issue of material fact about whether the demotion to part-time work in another state was a mere threat, or an adverse action.)

Finally, the panel holds that the same facts presents a genuine issue of material fact about constructive discharge.

“In determining whether the factual circumstances presented also amount to a constructive discharge, the question in this case becomes whether Barone’s working conditions became so intolerable after the August 17, 2006 meeting that a reasonable person in her position would feel compelled to resign. In concluding that her working conditions did not meet this standard, the district court emphasized how Barone’s own testimony described her options as a ‘choice,’ how her request for reinstatement was inconsistent with her claim of intolerable working conditions, and how Sprague’s and Mortimer’s offensive behavior did not meet this standard. We disagree with this analysis because it improperly considered Barone’s subjective views, which we have held are irrelevant to the constructive discharge inquiry . . . .

“. . . . In light of the totality of circumstances, we conclude that the ‘choice’ between resignation and a compound removal from management, demotion to part-time status, and transfer to a distant state was effectively no choice at all. Given the drastic employment and personal consequences Barone would have to endure were she to continue her employment with United, a reasonable jury could conclude that Barone’s working conditions became so difficult as a result of the August 17, 2006 meeting that a reasonable person in her position would feel compelled to resign.”