Blog Post

Strickland v. UPS, Inc., No. 07-1082 (10th Cir. Feb. 24, 2009)

Posted by: Paul Mollica
February 25, 2009
Topic: Daily Developments in EEO Law

A Tenth Circuit FMLA and Title VII decision -- reversing judgment as a matter of law for the company -- presents notable issues about constructive discharge (in particular, whether an employee must intend to quit employment to establish such a claim) and the use of "not-me" evidence by management to blunt an inference of discrimination.

Strickland v. UPS, Inc., No. 07-1082 (10th Cir. Feb. 24, 2009): The employee Carole Strickland, a key account executive, alleges that she placed her career in jeopardy when she accepted the invitation of her immediate supervisor (named Roten) to take a two-week FMLA leave to cope with an emotional trauma.

Upon her return from leave, Roten and her district manager (named Donnell) allegedly harangued her for poor performance, compelled her to attend regular meetings during sales hours to pick over her numbers, refused her assistance, denied her a transfer and charged her with insubordination when she used the open-door policy to talk to the district manager directly. Although Strickland filed a written complaint, it was never investigated by the company. Co-workers testified that Strickland was being singled out. Finally, she turned in her company laptop and said she was "done." Strickland testified that although she no longer wished to work for Roten, she wanted to continue to work at UPS.

The Tenth Circuit holds that the district court erred in granting JMOL on the claims of retaliation under the FMLA and gender discrimination under Title VII. As to the former claim, the district court held that there was no remedy (the FMLA provides only make-whole relief) because the employee failed to show that she was "constructively discharged." But the panel finds, unanimously, that the evidence of constructive discharge was at least equivocal and deserved to be weighed by a jury. The Tenth Circuit finds it an open issue whether an employee must manifest a subjective intention to quit to state a claim for constructive discharge, but finds that even under this standard there was ample evidence of an intent to cease working with Roten. The panel also holds that the managers' behavior arguably bubbled up to the intolerable range:

"Here, Strickland did not have job responsibilities taken from her, but she did believe her job was in jeopardy, she was repeatedly told by her supervisors her performance was unacceptable, and she was not provided support to perform her job when she requested it. In addition, her supervisors forced her to make written 'commitments' to win certain contracts, which in her view was a deliberate attempt to set her up to fail. She testified her meetings with supervisors to discuss her performance interfered with her ability to do her job. Roten exploded when she tried to take advantage of the company's open door policy and effectively told her she could not utilize the policy. She was held to higher standards than her co-workers. Finally, she attempted to improve her situation by filing an internal complaint and requesting a transfer, but neither action was helpful."

The panel also holds that UPS offering another position four months after Strickland left did not compel a finding that she had reasonable alternatives to quitting.

On the Title VII claim, we find management arguing that the other female employee in the department (named Harper) testified that she herself suffered no discrimination, to her knowledge. Remarkably, the district court concluded that this evidence -- combined with testimony from male employees that Roten was generally a harsh manager -- entirely occluded any inference that Strickland suffered because of her sex. The panel majority disagreed:

"Even though the male co-workers complained of Roten's managerial style, they and others also testified Strickland was treated differently from every male employee Roten supervised.Bishop is the only male employee who was subjected to treatment approaching what Strickland experienced. While his testimony, like Harper's, may undermine Strickland's sex discrimination claim, it does not defeat that claim as a matter of law in light of other testimony that she was treated worse than her male coworkers, including Deaton, who had inferior sales numbers."

A partial dissent (by Judge Gorsuch) concurs in the FMLA holding, but dissents from the Title VII portion, concluding that the plaintiff never identified a comparable male who was not abused by Roten, and that there was no other from which to infer a sex-discriminatory motive.