UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ AARON L. SAMPSON, Plaintiff - Appellant,

v. KANE IS ABLE, INC., Defendant - Appellee. No. 19-4095 (D.C. No. 2:17-CV-00947-DN) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , McHUGH , and MORITZ , Circuit Judges.

________________ _________________ Aaron Sampson appeals the district c ourt’s order granting summary judgment to Kane Is Able, Inc. (K ane). For the reasons expl ained below, we affirm. Background In 2015, Kane hired Sampson, who is African American, as a lead lift-truck operator at its warehouse in Salt Lake City , Utah. Like lift-truc k operators without the “lead” designation, Sampson’s duties included operating a forklift to move materials in the warehouse. The lead designation gave him some supervisory

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judi cata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32. 1; 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 30, 2020 Christopher M. Wolpert Clerk of Court2 authority over other lift-truck operators: he could oversee their work and train them, but he could not discipline them. In November 2015, Sampson told his s upervisors that his coworkers were mistreating him based on his race. He later repeated th is complaint, along with others, to Kane’s human-res ource department. Kane invest igated his complaints but found them unsubstantiated. Sampson al so received two negative performance reports; although he later ad mitted to the underlying conduc t, he also believed the reports were unfair. In early June 2016, Samp son filed an intake form with the Utah Antidiscrimination & Labor Division (UALD), seeking to file a formal charge of race-based discrimination agains t Kane; on June 8, he told Kane that he had done so. Also in June, Kane investigated tw o incidents allegedly involving Sampson “rummag[ing] through” both a coworker’s a nd his supervisor’s de sks. App. vol. 5, 544. In particular, in April, one of Sa mpson’s coworkers saw Sampson going through her desk; she reported it to another empl oyee. Then, on May 31, another employee saw Sampson going through his supervis or’s desk; the employee reported this incident to the supervisor on June 1. On June 15, human-res ource personnel learned of these allegations and initia ted an investigation. The next day, they asked the coworker and supervisor for written statem ents about the incide nts. Sampson denied that either incident occurred. On June 30, Kane suspende d Sampson with pay pending the outcome of the investigation. Kane ultimately found the allegati ons regarding Sampson’s rummaging through the coworker’s and supervisor’s de sks to be credible. Kane told Sampson3 that his actions constituted “gross misc onduct” warranting immediate termination. App. vol. 2, 198. But because Kane did not investigate “in a time frame more contemporaneous with” the relevant incident s, it chose instead to suspend Sampson without pay for one week, beginning on July 21; reduce his pay by 6.7% (from $14.86 to $13.86 per hour); and remove his lead designation. Id. But after his one-week suspension withou t pay, Sampson never returned to work; he testified that he viewed Kane’s actions as a terminati on. When Sampson did not return to work as scheduled on Thursday , July 28, Kane warned him that if he failed to report to work on Ju ly 29 and August 1, Kane would view his absence as if he had “terminated [his] employment.” Id. at 200. And when Sampson failed to return to work on either July 29 or Augu st 1, Kane informed Sampson that it was characterizing his actions as a voluntar ily termination of his employment. Sampson subsequently sued Kane, a nd Kane moved for summary judgment. Sampson consented to entry of judgment on all but two of his claims: that Kane violated both 42 U.S.C. § 1981 and a provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), by termina ting him in retaliation for raising his concerns with Kane personnel and the UALD. The district court granted Kane’s motion, finding that Sampson had not demonstrated a prima facie ca se of retaliation under § 1981 or Title VII because no reasonable jury could conclude that Ka ne constructively discharged Sampson. Sampson appeals.4 Analysis “We review the district court’s order granting su mmary judgment de novo, applying the same standard as the district court.” Fassbender v. Correct Care Sols.,
LLC , 890 F.3d 875, 882 (10th Cir. 2018). Summary judgmen t is appropriate if “there is no genuine dispute as to any material fact and the m ovant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact is ‘genuine’ if a rati onal jury could find in favor of the nonmoving party on the evidence presented.” EEOC v. Horizon/CMS Healthcare Corp. , 220 F.3d 1184, 1190 (10th Cir. 2000) (citation omitte d). We view the evidence befo re the district court “in the light most favorable to the nonmoving pa rty” and draw any reasonable inferences from that evidence in the nonmoving party’s favor. Fye v. Okla. Corp. Comm’n , 516 F.3d 1217, 1223 (10th Cir. 2008). To establish a retaliation claim under § 1981 or Title VII, a plaintiff must either present direct evidence of discri mination or proceed under the burden-shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). Crowe v. ADT Sec. Servs., Inc. , 649 F.3d 1189, 1194 (10th Cir. 2011) (noting that “the standards are the same” for § 1981 and Title VII). Here, as he did below, Sampson acknowledges that there is no direct evidence that Kane acted with a retaliatory motive. Like the district court, we theref ore evaluate his retalia tion claims under the McDonnell Douglas framework.5 Under this framework, Sampson bears the initial burden of making a prima facie demonstration of unlawful retaliati on by showing that “(1) he engaged in protected activity; (2) he su ffered an adverse employment action; and (3) there is a causal connection between his protected activity and the adverse employment action.” Davis v. Unified Sch. Dist. 500 , 750 F.3d 1168, 1170 (10th Cir. 2014). If Sampson makes this showing, then Kane bears the burden of “offer[ing] a legitimate, nonretaliatory reason for its decision.” Twigg v. Hawker Beechcraft Corp. , 659 F.3d 987, 998 (10th Cir. 2011). And if Kane makes such a show ing, the burden returns to Sampson to demonstrate that Ka ne’s reason is pretextual. Id. Here, the district court did not reach the latter steps of the McDonnell Douglas framework because it concluded that Samp son failed to meet his initial burden. In particular, the district cour t determined that Sampson failed to demonstrate an adverse employment action. Challenging th is determination on appeal, Sampson argues that a reasonable jury could find he suffered an adverse employment action because Kane either actually discharged him or constructivel y discharged him. Specifically, Sampson argues that Kane actu ally or constructively discharged him by suspending him for a week without pay, “e liminating his position” as lead lift-truck operator, removing his supervisory respons ibilities, and reducing his pay. Aplt. Br. 31. And according to Sampson, the events leading up to his termination “only added to the objectively intolerable conditions” that made it impossible for him to return. Id. at 35. We disagree.6 As an initial matter, it appears that Sampson never presented his actualdischarge argument to the dist rict court. He therefore fo rfeited any such argument. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1128 (10th Cir. 2011). And although we can review forfeited arguments for plain error, Sampson’s failure to argue for plain error on appeal effectivel y waived his actual-discharge argument. See id. at 1130–31. Nevertheless, we have discretion to review a forfeited or waived argument, and we exercise that discretion here. See Medina v. Catholic Health
Initiatives , 877 F.3d 1213, 1227 n. 6 (10th Cir. 2017) (noti ng that “waiver is a discretionary doctrine”). To show actual discharge, Sampson mu st make a prima facie demonstration that Kane’s language or conduct would “logically le ad a prudent person to believe” he or she had been discharged. Fischer v. Forestwood Co. , 525 F.3d 972, 979 (10th Cir. 2008) (quoting Chertkova v. Conn. Ge n. Life Ins. Co. , 92 F.3d 81, 88 (2d Cir. 1996)). Stated differently, “[a]n actual discharge does not o ccur . . . when the employee chooses to resign rather than work under undesirable conditions.” Id. at 980. Sampson argues that th e elimination of his lead designation meant he had no position to return to after his suspension. But Sampson’s position was not eliminated; instead, Kane repeatedly asked Sampson to return to work as a lift-truck operator without the lead designation. And a “prude nt person” would not “logically” interpret Kane’s requests that Sampson return to work to mean th at “his [or her] tenure ha[d] been terminated.” Id. at 979 (quoting Chertkova , 92 F.3d at 88). Thus, Sampson7 “cho[se] to resign rather than” return to Ka ne in an “undesirabl e” position as a lifttruck operator, and Kane did not actually discharge Sampson. Id. at 980. 1 Next, Sampson argues a reasonable jury could find that Kane constructively discharged him and that the district court erred in concluding ot herwise. Constructive discharge occurs when an em ployer’s actions make work ing conditions “so difficult” or “intolerable” that the employee “ha[s] no other choice but to quit.” Hiatt v. Colo. Seminary , 858 F.3d 1307, 1318 (10t h Cir. 2017) (quoting Bennett v. Windstream Commc’ns, Inc. , 792 F.3d 1261, 1269 (10th Cir. 2015 )). This standard is objective: the court “disregard[s] both the employ ee’s subjective view of the workplace environment and the employer’s subjectiv e intentions regarding the employee.” Baca v. Sklar , 398 F.3d 1210, 1216 (10th Cir. 2005). And if an employee resigns of his “own free will, even as a re sult of the employer’s actions , that employee will not be held to have been cons tructively discharged.” Id. (quoting Jeffries v. Kansas , 147 F.3d 1220, 1233 (10th Cir. 1998), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth , 524 U.S. 742 (1998)). Sampson argues that Kane’s actions—suspendi ng him for a week without pay; removing his lead designation and supervisory responsibilit ies; and reducing his pay

1 Sampson’s reliance on McInerney v. United Air Lines, Inc. , 463 F. App’x 709 (10th Cir. 2011) (unpublishe d), does not alter our conclusion. There, the employer had discretion to extend the leave of an em ployee who “desperately wanted to keep working,” but it instead decide d to terminate the employee. Id. at 716–17. Here, by contrast, Kane did not terminate Samp son’s employment; it repeatedly asked Sampson to come back. That Sampson chose not to return does not mean that Kane actually terminated him.8 by $1 per hour—constitute cons tructive discharge. And it is true that “[a] perceived demotion or reassignment to a job with lo wer status or lower pay may, depending upon the individual facts of th e case, constitute aggravati ng factors that would justify [a] finding of constructive discharge.” James v. Sears, Roebuck & Co. , 21 F.3d 989, 993 (10th Cir. 1994). But whatever Samps on’s subjective impression of his reduced pay and attendant loss of responsibilities, he has not shown that a reasonable jury could find these conditions so “objectively intolerable” th at he “had no other choice but to quit.” Hiatt , 858 F.3d at 1318 (quoting Bennett , 792 F.3d at 1269). The cases Sampson cites to support hi s constructive-discharge argument all involve some combination of large pay cu ts, great losses of re sponsibility, and being forced to choose between quitting or being terminated. See, e.g. , Douglas v. Orkin Exterminating Co. , No. 98-8076, 2000 WL 667982, at *4 (10th Cir. 2000) (unpublished) (reversing summary judgmen t for employer on state-law breach-ofcontract claim where employer “demoted [e mployee] from the highest to the lowest position available . . . and reduced hi s compensation by more than half”); James , 21 F.3d at 991, 993 (affirming ju ry’s constructive-discharg e finding where employees could either quit with 35% pension-benefit cut or stay “while being harassed or moved to jobs where unreachable quotas could be used as a pretext for firing them”); Spulak v. K Mart Corp. , 894 F.2d 1150, 1154 (10th Ci r. 1990) (affirming jury’s constructive-discharge findi ng where employer gave employee choice between either quitting and taking early retirement benefi ts or being terminated and losing retirement benefits), abrogated on other gr ounds by Hazen Paper Co. v. Biggins , 5079 U.S. 604 (1993); Cockrell v. Boise Cascade Corp. , 781 F.2d 173, 175, 178 (10th Cir. 1986) (reversing directed verdict for employer because facts could support constructive-discharge finding where empl oyee believed he would receive 40% pay cut along with demotion from managi ng five lumberyards to one). By contrast, Sampson faced far less onerous consequences from Kane’s actions. Indeed, Sampson concedes that “tak en alone,” Kane’s d ecision to reduce his pay 6.7%, from $14.86 per hour to $13.86 per hour, “would likely not support [his] claim.” Rep. Br. 6. And even combinin g that pay cut with the one-week unpaid suspension and the loss of so me responsibility is not en ough to show constructive discharge in this case. As lead lift-truck operator, Sampson shared many of the same duties as other lift-truck ope rators, although he also ha d some authority to oversee lift-truck operations. A nd he himself admits that even though he oversaw some of the work in the warehouse, he lacked the author ity to discipline his co workers or even to refer to himself as a supervisor. And rath er than giving him “no choice but to quit,” Kane repeatedly asked him to return as a lift-truck operator with a 6.7% pay cut and many of the same duties as a lead lift-truc k operator. These cons equences are not so “objectively intolerable” that Sampson “had no other choice but to quit.” Hiatt , 858 F.3d at 1318 (quoting Bennett , 792 F.3d at 1269). And as the district court concluded, this remains true despite Sampson’s subject ive belief that Kane had terminated him; the constructive-discharge test is purely objective. See id. Accordingly, Sampson has not shown that “the individual facts of th[is] case[] constitute aggravating fact ors that would justify [a ] finding of constructive10 discharge.” James , 21 F.3d at 993. He therefore cannot establish a prima facia case of retaliatory discrimination. See Davis , 750 F.3d at 1170. Conclusion Because Sampson fails to make a prima facie demonstration that “he suffered an adverse employment action” by either actu al or constructive di scharge, we decline to consider his remaining arguments. Davis , 750 F.3d at 1170. Accordingly, we affirm the district court order gr anting summary judgment to Kane.

Entered for the Court
Nancy L. Moritz Circuit Judge