United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE
before the Court is defendant's motion for summary
judgment (Dkt. # 94). Defendant asks the Court to grant
summary judgment in its favor, arguing that plaintiff's
retaliatory failure to promote claim is time barred, that
plaintiff has failed to make a prima facie showing of
retaliation or discrimination, and that plaintiff has failed
to demonstrate pretext. Dkt. # 94, at 20-30. Plaintiff
responds that she has established a prima facie case of
retaliation, and that she has presented sufficient evidence
of pretext. Dkt. # 112,  at 25-27. Defendant replies that
plaintiff abandoned her claims of retaliatory failure to
promote and sex discrimination by failing to address in her
response brief defendant's arguments for summary judgment
on those claims. Dkt. # 127, at 1-2.
August 2007, defendant hired plaintiff, a white female, as a
realtor sales representative to work in its Tulsa office.
Dkt. # 94, at 8; Dkt. # 112, at 1. In 2008, plaintiff became
an acquisition sales representative, and in February 2009 she
became an account executive for defendant's retention
team. Dkt. # 94, at 8; Dkt. # 112, at 1. While she worked as
an account executive, plaintiff reported to sales manager Tom
McPherson, who reported to director of sales Tim Jenney until
March 9, 2013, when Jenney resigned. Dkt. # 94, at 8; Dkt. #
112, at 1. After Jenney's resignation, McPherson reported
to Jenney's replacement, Christopher Shipman. Dkt. # 94,
at 8-9; Dkt. # 112, at 1.
2012, the sales team took a business trip to Oklahoma City.
Dkt. # 94-1, at 22. Defendant provided a charter bus from
Tulsa for its employees. Id. at 130. Seated behind
plaintiff on the bus was Mark Palzer, who was a member of the
small business group, which was managed by Shelley Stauffer.
Id. at 23, 130. While on the bus, plaintiff
overheard a phone conversation between Stauffer and Palzer in
which Stauffer was yelling at Palzer for riding on the bus
instead of the separate van provided for the small business
group. Id. at 130. The van pulled in front of the
bus at a traffic light, and Stauffer got out of the van,
pounded on the door of the bus, and ordered Palzer to get off
the bus and into the van. Id. Palzer collected his
belongings and moved to the van. Id. Plaintiff
immediately sent McPherson a text message to tell him what
happened and asking him to help Palzer. Id. at 131.
next day, plaintiff went to the office of Melissa Cruts, a
human resources business partner, to discuss the bus
incident. Id. at 25. Jenney was already in
Cruts's office when plaintiff arrived, and plaintiff
reported to both of them what she had seen between Stauffer
and Palzer the day before. Id. at 25, 124. Plaintiff
told Cruts and Jenney that she was embarrassed for the
company and that she believed Stauffer singled out Palzer for
harsh treatment. Id. at 124. Plaintiff also reported
that Stauffer told another member of the retention team at
some point that, “We have enough white men in the
group, we need to hire diversity.” Id. at
30-31, 124. In December 2012, Palzer, a white male over forty
years old, filed a complaint with the Equal Employment
Opportunity Commission (EEOC) alleging that Stauffer, a white
woman in her fifties, discriminated against him on the basis
of his race and age. Dkt. # 116-28. Palzer listed plaintiff
as a witness to the bus incident and the diversity comment.
Id. at 9.
August 2012, defendant issued new corporate policies that
stated all accounts funded by the Oklahoma Universal Services
Fund (OUSF) must be handled by the designated account
representative. Dkt. # 94-1, at 57, 132. Plaintiff had a
large account at the time that used OUSF funds, and McPherson
and Jenney told plaintiff that an exception to the new rule
had been made so that she could continue to work on the
account. Id. at 58, 132. In December 2012, McPherson
and Jenney told plaintiff that “it had been handed down
from corporate headquarters” that there would no longer
be an exception to the new rule and the account would be
handed over to Brent Sherl, a senior account executive.
Id. at 132.
December 2012, plaintiff applied for the position of
strategic service manager. Dkt. # 94, at 10; Dkt. # 112, at
1. The position reported to Darren Holland, the director of
operations for Oklahoma. Dkt. # 94, at 10; Dkt. # 112, at 1.
A human resources employee determined that three of the four
applicants were qualified for the position, and the three
remaining applicants, including plaintiff, were interviewed
by Holland and Jenney in early February 2013. Dkt. # 94, at
10; Dkt. # 112, at 1. On March 14, 2013, Holland hired
Stephanie Schultze, a white female, for the position. Dkt. #
116-30, at 22.
February 25, 2013, plaintiff submitted her resignation to
McPherson to open her own transportation business. Dkt. #
94-1, at 46-47. The next day, plaintiff wrote an email to
Randy Chandler, vice president of Cox Business, informing him
of her resignation and asking to meet with him that week to
talk about the strategic service manager position and her
future at the company. Id. at 139. After meeting
with Chandler, during which he encouraged plaintiff to stay
at the company, plaintiff decided to rescind her resignation.
Id. at 52-55.
10, 2013, defendant terminated Palzer. Dkt. # 94-2, at 2.
Defendant's proffered reason for firing Palzer was
“poor performance.” Id. Plaintiff
asserts that she made “additional complaints” to
“management” about Stauffer's
“discriminatory treatment of Palzer” after
plaintiff's initial discussion with Jenney and Cruts in
June 2012. Dkt. # 116-5, at 2. Plaintiff states that the last
of these complaints was to McPherson in August 2013, two
months after Palzer was fired. Id.
October 4, 2013, defendant terminated Steven Fulps for
violating its conflict of interest policy. Dkt. # 94, at
13-14; Dkt. # 112, at 1. Human resources business partner
Erin Vierthaler conducted the conflict of interest
investigation, during which she discovered that Fulps owned a
company that provided services offered by defendant and that
Fulps had used his position with defendant to solicit
business for his personally-owned company. Dkt. # 116-3, at
12-17. During his interview with Vierthaler, Fulps
“complained that there were other employees who ran
their own businesses.” Dkt. # 94-4, at 3. Fulps asserts
that he did not specifically identify any employees who ran
other businesses, Dkt. # 116-7, at 1, but Vierthaler asserts
that Fulps named plaintiff, Dkt. # 94-4, at 3.
Fulps was fired, McPherson, at Vierthaler's request,
asked plaintiff to review defendant's conflict of
interest policy to determine whether she needed to file a
disclosure form. Dkt. # 94, at 16; Dkt. # 112, at 1, 5-6.
Plaintiff completed a disclosure form stating that her
domestic partner and two uncles owned
“telcom-related” businesses used by some of
defendant's customers. Dkt. # 94-1, at 86, 240. At the
request of human resources manager Heather Romeike,
Vierthaler conducted an investigation into Tulsa
Telesolutions, the company managed by plaintiff's
domestic partner. Dkt. # 94-4, at 3. Vierthaler interviewed
plaintiff in November 2013 about her potential conflict of
interest. Dkt. # 94, at 17; Dkt. # 112, at 1. Based on her
investigation, Vierthaler determined that plaintiff had been
the owner/operator of Tulsa Telesolutions frm August 2011 to
sometime in 2012, and that her partner ran the company after
2012. Dkt. # 94-4, at 43. Vierthaler also concluded that
plaintiff financially benefitted from the business and that
the company competed with defendant. Id.
early December 2013, Vierthaler sent a summary of her
investigation to vice president of human resources Becky
Ordoyne. Id. at 5, 37. Ordoyne reviewed the summary
and determined that a conflict of interest existed.
Id. at 37. On December 16, 2013, Vierthaler sent an
email to McPherson, Shipman, and Romeike attaching her
investigation summary and recommending termination of
plaintiff's employment. Id. at 6, 43. Vierthaler
asserted that a conflict of interest existed because
plaintiff had the ability to refer defendant's customers
to outside vendors, including Tulsa Telesolutions, and she
had access to defendant's current and potential customer
lists, sales strategies, and network information.
Id. at 43. Shipman, Chandler, McPherson, and Romeike
approved of plaintiff's termination under the conflict of
interest policy. Id. at 57-61. On December 20, 2013,
defendant terminated plaintiff's employment. Id.
December 3, 2015, plaintiff filed this suit in the Tulsa
County District Court, State of Oklahoma. Dkt. # 2-3, at 1.
Defendant removed the case to this Court. Dkt. # 2. Plaintiff
alleges claims of retaliatory discharge, retaliatory failure
to promote, and sex discrimination, all under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. (Title VII). Dkt. # 2-3, at 10-14. Defendant now
moves for ...