Mitani v. IHC Health Services, Inc. , 53 F. App'x 48 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 16 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
DONNA MITANI,
Plaintiff - Appellant,
v. No. 01-4190
(D.C. No. 2:00-CV-23-C)
IHC HEALTH SERVICES, INC., (D. Utah)
d/b/a Utah Valley Regional Medical
Center,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, HARTZ, and O’BRIEN, Circuit Judges.
I. Background
Plaintiff-Appellant Donna Mitani filed this suit against her former
employer, Defendant-Appellee IHC Health Services, Inc., d/b/a Utah Valley
Regional Medical Center (“IHC”), in the United States District Court for the
District of Utah. Mitani alleged sex discrimination and retaliation under Title
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
VII, 42 U.S.C. § 2000e, et seq., (“Title VII”). The district court granted summary
judgment in favor of IHC on all claims. We exercise jurisdiction pursuant to 28
U.S.C. § 1291 and AFFIRM.
Mitani was employed in IHC’s South Urban Region, as the manager of
Environmental Services and Laundry/Linen. In the Spring of 1998, Chris Coons –
the Chief Operating Officer of the South Urban IHC – decided to create a new
Operations Officer position. The person hired to fill this position was to devise a
“hotel model” of hospitality services at the center. In March 1998, Coons hired
Marilyn Thorne for the position, and Thorne began creating the hotel-model
hospitality program.
Later that year, in August 1998, Coons was at the American Fork public
swimming pool with his children when Mitani arrived to swim with her three
children. Mitani was wearing a bikini. Coons and Mitani did not speak to each
other, and this offended Mitani. She believed that Coons found her choice of
swimming apparel objectionable. Mitani had worn the same bikini to IHC
swimming parties at Provo’s Seven Peaks Water Park where male and female IHC
employees wore various types of swimming apparel.
Approximately five days after the incident at the pool, Mitani alleges that
Thorne approached her and said that she should not wear a bikini at a public pool.
The next day, Mitani contacted the Utah Anti-Discrimination and Labor Division
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(“UALD”) for information about how to file a discrimination claim against her
employer. Mitani alleges that after the UALD inquiry, Thorne approached her
again, this time to tell her that she should forget about their earlier conversation
regarding Mitani’s choice of swimwear.
Approximately six months later, in February 1999, Thorne created a new
position – Regional Hospitality Manager – to facilitate the creation of a more
hotel-like atmosphere in the hospital. The new position was designed to
consolidate and upgrade all of the hospitality-related aspects of the hospital,
thereby creating a more welcoming environment. The Regional Hospitality
Manager would be responsible for the duties of Mitani’s current position, as well
as new responsibilities.
Thorne interviewed several candidates, including Mitani, and ultimately
hired Gregory Parrott for the position. Parrott holds degrees in Culinary Arts and
Hospitality Management, as well as a bachelors degree in Hotel Administration.
He was employed for five years at the Mirage Hotel in Las Vegas and eighteen
months at the Salt Lake City Courtyard Marriott.
Mitani does not hold a bachelors degree, one of the prerequisites set forth
for the position of Regional Hospitality Manager. Mitani applied and interviewed
for the new position, but she withdrew her application after the interview. Mitani
alleges that Thorne told her after the interview that she would not be hired for the
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new position.
Lane Pederson – an IHC Human Resources employee – encouraged Mitani
to stay in her present position until Parrott arrived in May 1999. Mitani quit,
however, on April 16, 1999. She filed a discrimination suit with UALD on July
26, 1999. The record contains no evidence that Mitani told Thorne or Coons prior
to her departure that she had contacted UALD. There is evidence, however, that
Mitani told other IHC employees – including Pederson – about her inquiry to
UALD.
II. Discussion
A. Standard of Review
“We review the district court’s grant of summary judgment de novo,
applying the same legal standard used by the district court.” Simms v. Okla. ex
rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th
Cir. 1999). Summary judgment is appropriate “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.” F ED . R. C IV . P. 56(c).
We examine the factual record and draw all reasonable inferences therefrom in
the light most favorable to the nonmoving party. Simms, 165 F.3d at 1326.
B. Title VII Claims
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Under Title VII, an employer may not discriminate against an employee
with respect to the terms or privileges of employment because of the employee’s
sex. In analyzing sex discrimination and retaliation claims, we apply the three-
part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-56 (1981) (sex
discrimination); Penry v. Fed. Home Loan Bank, 155 F.3d 1257, 1263-64 (10th
Cir. 1998) (retaliation).
Under this framework, the plaintiff must first establish a prima facie case
of discrimination. McDonnell Douglas, 411 U.S. at 802. If the plaintiff succeeds
in proving her prima facie case, the employer must come forth with a legitimate
and facially nondiscriminatory reason for its employment decision. Id. Finally, if
the employer satisfies this burden, the plaintiff must demonstrate that the
defendant’s proffered reasons were a pretext for discrimination. Id. at 804. “The
ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.”
Burdine, 450 U.S. at 253 (citations omitted).
When a case comes before us at the summary-judgment stage, the plaintiff
survives the motion by “advanc[ing] evidence establishing a prima facie case and
evidence upon which a factfinder could conclude that the defendant’s alleged
nondiscriminatory reasons for the employment decisions are pretextual.” Ingels v.
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Thiokol Corp., 42 F.3d 616, 622 (10th Cir. 1994). We proceed to consider
Mitani’s sex discrimination and retaliation claims under this standard.
1. Sex Discrimination
a. Mitani’s prima facie case
Under McDonnell Douglas, Mitani bears the initial burden of establishing a
prima facie case of sex discrimination by a preponderance of the evidence. To
satisfy this burden, Mitani must show that “(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.” Sanchez v. Denver Pub. Sch., 164 F.3d 527,
531 (10th Cir. 1998) (citations omitted).
Mitani has not met this burden. She has not offered sufficient evidence
from which a jury could conclude that she suffered an adverse employment
decision. Nor is there sufficient evidence for a jury to conclude that Mitani was
qualified for the position at issue. Accordingly, we hold that the district court
properly granted IHC’s motion for summary judgment on Mitani’s sex
discrimination claim.
(1) Adverse employment action
“Although the Tenth Circuit liberally defines an ‘adverse employment
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action,’ its existence is determined on a case by case basis and does not extend to
‘a mere inconvenience or an alteration of job responsibilities.’” Heno v.
Sprint/United Mgmt. Co., 208 F.3d 847, 857 (10th Cir. 2000) (quoting Sanchez,
164 F.3d at 532). An employer’s “[r]etaliatory conduct other than discharge or
refusal to rehire is . . . proscribed by Title VII only if it alters the employee’s
‘compensation, terms, conditions, or privileges of employment,’or ‘adversely
affect[s] his [or her] status as an employee.’” Sanchez, 164 F.3d at 533 (citations
omitted).
Mitani suffered no adverse employment decision. First, IHC did not
actually discharge Mitani. At the time Mitani chose to quit, she was working in
the same job, for the same pay, with the same benefits. Mitani offers no evidence
indicating that IHC would not have offered her another job at the same level of
compensation after IHC hired Parrott for the new position of Regional Hospitality
Manager. In fact, IHC told Mitani that there would likely be a position for her
following the restructuring.
Second, IHC did not constructively terminate Mitani when IHC created the
position of Regional Hospitality Manager. To support a constructive discharge
claim under Title VII, a plaintiff must produce evidence sufficient to demonstrate
that “‘the employer by its illegal discriminatory acts has made working conditions
so difficult that a reasonable person in the employee’s position would have
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viewed her working condition as intolerable.’” Sanchez, 164 F.3d at 534. The
standard is an objective one; thus, an employee’s subjective feelings or beliefs are
irrelevant. Heno, 208 F.3d at 858. “‘If an employee resigns of her own free will,
even as a result of the employer’s actions, that employee will not be held to have
[suffered an adverse employment decision].’” Id. (citation omitted). In a
constructive-discharge claim, “[e]ssentially, a plaintiff must show that she had
‘no other choice but to quit.’” Sanchez, 164 F.3d at 534 (citation and internal
quotation marks omitted) (emphasis in original).
IHC told Mitani that she could remain in her position until Parrott started
work and that there would likely be a position for her after the restructuring. But
rather than wait and see whether a new job would be made available, Mitani chose
to quit. Because there is no evidence that she suffered an adverse employment
decision, Mitani cannot establish her prima facie case.
(2) Mitani’s qualifications for the position of Regional Hospitality Manager
IHC eliminated Mitani’s position and created a new position – Regional
Hospitality Manager – in an effort to create a more “hotel-like” environment at
the hospital. The job description for the new position required a bachelors
degree. Mitani, by her own admission, did not have a bachelors degree.
The degree requirement was not the only difference between Mitani’s
position and the new position. IHC created the new position in an effort to
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provide the hospital customers with a “more hotel-like” environment. Unlike
Parrot – the person ultimately hired for the position – Mitani had no experience
relevant to the performance of such duties. Parrott testified that he spends sixty
percent of his time performing hospitality-related functions. This is consistent
with IHC’s shift in focus to a more “hotel-like” atmosphere at the hospital and
indicates a substantial difference between Parrot’s job duties under the new
structure and Mitani’s former job duties.
Despite this shift in focus, Mitani claims that her previous experience with
IHC qualified her for the new position. An employee’s opinions about her own
qualifications, however, do not give rise to a material factual dispute. See
Burlington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir. 1999). Even
if we conclude that IHC misjudged Mitani’s qualifications, such evidence would
not preclude summary judgment. See id. “The relevant inquiry is not whether
[IHC’s] proffered reasons were wise, fair or correct, but whether [IHC] honestly
believed those reasons and acted in good faith upon those beliefs.” Id. (citation
omitted).
In sum, Mitani failed to demonstrate that she was qualified for the new
position of Regional Hospitality Manager. She likewise failed to show that IHC
acted in bad faith in creating the new position. Thus, Mitani failed to establish
her prima facie case under the McDonnell Douglas test.
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b. Conclusion
Based on the above, we conclude that the district court properly granted
IHC’s motion for summary judgment on Mitani’s sex discrimination claim under
Title VII.
2. Retaliatory Discharge
Mitani next contends that IHC retaliated against her when they created the
Regional Hospitality Manager position with a bachelors degree requirement. We
disagree.
Under Title VII, an employer may not discriminate against an employee in
retaliation for the employee’s opposition to unlawful 1 employment practices. See
42 U.S.C. § 2000e-3(a). Title VII provides in pertinent part:
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . because [the employee]
has opposed any practice made an unlawful employment practice by
this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing
under this subchapter.
Id. (emphasis added).
1
We note that Mitani can succeed in her retaliation case, even if IHC did
not in fact act unlawfully. It is well settled that a violation of the retaliation
provision can be found whether or not the challenged practice is ultimately found
unlawful. Love v. Re/Max of America, Inc., 738 F.2d 383, 385 (10th Cir. 1984).
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In order to establish a prima facie case of retaliation, Mitani must establish
that (1) she engaged in protected opposition to Title VII discrimination or
participated in a Title VII proceeding, 2 (2) adverse employment action was taken
against her subsequent to or contemporaneously with the protected activity, and
(3) a causal connection exists between the protected activity and the adverse
employment action. Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1381 (10th Cir.
1994). “To prevail on a retaliatory discharge claim, a plaintiff must establish that
the decision to terminate her resulted from retaliatory animus.” Medlock v. Ortho
Biotech, Inc., 164 F.3d 545, 549 (10th Cir. 1999).
Mitani’s retaliation claim suffers from the same fatal flaw as does her sex
discrimination claim, namely, she has failed to demonstrate that she suffered an
adverse employment decision. Thus, Mitani cannot meet her burden of
establishing the elements of her prima facie case.
III. Conclusion
For the reasons set forth above, we AFFIRM the entry of summary
judgment for the defendant on the plaintiff's Title VII sex discrimination and
2
Under the first element, we limit our consideration to Mitani’s informal
inquiry to the UALD on August 19, 1998. Mitani’s subsequent filing of a formal
charge with the UALD cannot form the basis for her retaliation claim because her
job had already been restructured when she filed the formal charge.
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retaliatory discharge claims.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
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