## F I L E D United States Court of Appeals Tenth Circuit 

### APR 30 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NICK PREMRATANANONT, Plaintiff-Appellant,

v. SOUTH SUBURBAN PARK AND RECREATION DISTRICT, a special district, Defendant-Appellee. No. 97-1090 (D.C. No. 96-WY-446-WD) (Colorado)



### ORDER AND JUDGMENT

Before SEYMOUR , Chief Judge, ANDERSONand LUCERO , Circuit Judges.

Nick Premratananont, who is Asian, brought suit aga inst South Suburban Park and Recreation District (South Surburban) alle ging constructive discharge based on his race/national origin in violation of T itle VII and state law. The district court granted South Suburban’s motion for summary judgment. Mr. Premratananont appeals, and we affirm. Plaintiff was hired by South Suburban to do custodi al work and minor repairs in July 1981. He was promoted twice on the recommendation of his then--2-

supervisor Bob Pfeiffer, ultimately obtaining the p osition of Lead Facility Maintenance Specialist at the Goodson Recreation Ce nter. In May 1994, Mr. Pfeiffer resigned and Kim Lathrop became plaintiff’s new supervisor. In September, South Suburban poste d a job opening for Supervisor of Preventative Maintenance. Although p laintiff met the minimum qualifications listed for the position and submitte d an application along with fiftyone other persons, he was not granted an interview. Kevin Greene, manager of South Suburban’s recreational facilities, was respo nsible for selecting the interviewees. Mr. Greene stated in his deposition that he did not choose plaintiff because plaintiff had no experience managing multip le sites and because Ms. Lathrop had informed him she was having problems wi th plaintiff’s work performance. On September 29, 1994, plaintiff requested that Ms. Lathrop ask Mr. Greene why he had not been chosen for an interview. Later in the day, Ms. Lathrop gave plaintiff a memorandum, dated Septembe r 29, 1994, stating that she and plaintiff had discussed his poor work performan ce “numerous times” in the past, and “if improvement [was] not seen in 90 days this could lead to suspension and termination.” Aplt. App. at 336. Ms. Lathrop indicated to plaintiff that concerns with his work may have been one of the rea sons why plaintiff was not selected for an interview. Upset by Ms. Lathrop’s memorandum, plaintiff-3-

requested and was granted sick leave. While on leave, plaintiff received treatment for depression and anxiety and found empl oyment elsewhere. Plaintiff resigned from his position at South Suburban on Dec ember 6, 1994. In accordance with South Suburban’s internal griev ance procedure, plaintiff wrote a letter of grievance to Mr. Greene requesting written justification for his exclusion from the interview process. Mr. Greene responded that plaintiff was not interviewed because he did not have the sam e knowledge and experience as the other top candidates. Plaintiff appealed Mr . Greene’s decision to the personnel office, but resigned before the appeal pr ocess could be completed. We review the grant or denial of summary judgment d e novo. Summary judgment is appropriate if the evidence shows there is no genuine issue as to any material fact and the moving party is entitled to j udgment as a matter of law. Seymore v. Shawver & Sons, Inc. , 111 F.3d 794, 797 (10th Cir. 1997). “[T]he mere existence of some alleged factual dispute between the parties will n ot defeat an otherwise properly supported motion for summary judgment. . . . Factual disputes that are irrelevant or unnecessary will no t be counted.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986). When applying this standard, we view the evidence in the light most favorable to the nonmoving party. Seymore , 111 F.3d at 797. Because plaintiff relies on circumstantial evidence to demonstrate South-4-

Suburban’s discriminatory intent, we must apply the burden shifting framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-05 (1973). The first step of the McDonnell Douglas analysis places the burden on plaintiff to establish a prima facie case of discrimination. Se e Reynolds v. School Dist. No.
1 , 69 F.3d 1523, 1533 (10th Cir. 1995). In the cont ext of a constructive discharge claim based on racial discrimination, plaintiff mus t show: (1) he is a minority; (2) he was performing satisfactory work or was qual ified to do the job; (3) defendant subjected him to working conditions that a reasonable person would view as intolerable because of his race; and (4) hi s position was filled by a nonminority. Id. at 1334; Cone v. Longmont United Hosp. Ass’n , 14 F.3d 526, 529 (10th Cir. 1994). The district court held plaintif f failed to establish the third element of constructive discharge, and therefore fa iled to present a prima facie case of discrimination under Title VII. The court dismisssed the state law claims without prejudice, declining to exercise supplement al jurisdiction. Constructive discharge occurs when a reasonable per son in the employee’s position has essentially “no other choice but to qu it.” Yearous v. Niobrara County Mem’l Hosp. , 128 F.3d 1351, 1356 (10th Cir. 1997) (internal qu otation marks and citation omitted). The typical construct ive discharge claim alleges that an employer created a hostile work environment whic h rendered working conditions intolerable. Constructive discharge cla ims may also be based on other-5-

types of intolerable working conditions such as ret aliatory conduct for making a complaint of discrimination, see Woodward v. City of Worland , 977 F.2d 1392, 1402 (10th Cir. 1992), or a failure to promote for discriminatory reasons, see Irving v. Dubuque Packing Co. , 689 F.2d 170, 171-72 (10th Cir. 1982). However, “[a] finding of constructive discharge must not be based only on the discriminatory act; there must also be aggravating factors that make staying on the job intolerable.” James v. Sears Roebuck , 21 F.3d 989, 992 (10th Cir. 1994); see alsoIrving , 689 F.2d at 172-73. Examples of “aggravating fac tors” might include a perceived demotion or reassignment to a job with lower status or lower pay, depending on the individual circumstances of each c ase. James , 21 F.3d at 993. Courts must therefore examine the “totality of the circumstances.” Yearous , 128 F.3d at 1356. Plaintiff bases his constructive discharge claim ondiscriminatory treatment, failure to promote, and retributive conduct. The r ecord reveals no indication that Ms. Lathrop treated plaintiff differently, or that Mr. Greene denied him an interview, because of his race; nor does it reveal any aggravating factors which created conditions that were so intolerable a reaso nable person would feel compelled to resign. The extent of plaintiff’s all egations of differential treatment by Ms. Lathrop include walking around the Goodson Recreation Center with plaintiff pointing out tasks that needed to be comp leted and requiring plaintiff to-6-

clear vacation days and doctors’ visits with her, while not demanding the same of Mr. Blevins, a supervisor of another recreation center; excluding plaintiff from a walk around the Goodson facility with Mr. Blevins and another supervisor; and telling plaintiff she trusted Mr. Blevins more thanhim. Aplt. App. at 45-46, 61- 62. Ms. Lathrop never yelled at plaintiff, called him any names, or insulted him. Aplt. App. 68-70. We find plaintiff’s allegations of discriminatory c onduct by Mr. Greene equally unavailing. Fifty-two persons applied for the position. Many of the applicants, like plaintiff, met the minimum qualifi cations but were not granted interviews. Mr. Greene established objective crite ria to narrow the field of potential interviewees. One such criterion was the management of multiple sites, experience which plaintiff admitted he did not poss ess. Don Pettit, who was ultimately hired for the position, often filled in during vacations and sick leaves for the outgoing Supervisor of Preventative Mainten ance. Moreover, South Suburban had promoted plaintiff twice in the past, and plaintiff never received any pay cut or lower status assignments as a resultof being denied for the promotion. Plaintiff has failed to show that Ms. L athrop’s and Mr. Greene’s conduct was motivated by racial animus; he therefor e cannot claim he was “forced to quit because of race-based, intolerable conditio ns.” Bolden v. PRC, Inc. , 43 F.3d 545, 552 (10th Cir. 1994).1 The issue of whether Ms. Lathrop fabricated such al legations is highly

disputed by the parties. This factual dispute, how ever, does not “affect the outcome of the suit,” and therefore does not “prope rly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986) Even assuming September 29 was the first time Ms. L athrop mentioned plaintiff’s poor work performance to him, as we discuss infra , we still conclude plaintiff was not constructively discharged. -7- Plaintiff further contends he was constructively di scharged as a result of Ms. Lathrop’s retaliatory conduct in response to hi s complaints as to why he was not granted an interview. Plaintiff specifically a lleges Ms. Lathrop made up lies about his work performance and about raising such c oncerns with him on numerous occasions, and threatened him with termination if his performance did not improve. 1 One factor we consider in determining the voluntariness of a plaintiff’s decision to resign is “whether the empl oyee was given some alternative to resignation.” Yearous , 128 F.3d at 1356 (internal quotation marks and ci tation omitted). Here, plaintiff did not utilize South Suburban’s internal grievance procedure to contest Ms. Lathrop’s allegedly fabric ated and undeserved negative performance evaluations of him or the ninety-day warning of termination. Plaintiff only filed a grievance regarding his fail ure to obtain an interview, and resigned before the appeal of this issue was comple ted. Our review of the record persuades us that the conditions were not so seriou s that a reasonable employee in plaintiff’s position would have resigned before pur suing South Suburban’s internal grievance procedures. See id. at 1357 (nurses who chose to forego filing-8-

an internal grievance with hospital’s personnel committee could not prove their resignation was involuntary where conditions were n ot sufficiently serious and reasonable alternative to resignation existed); Boz e v. Branstetter , 912 F.2d 801, 805 (5th Cir. 1990) (per curiam) (more appropriate response to being passed over for promotion or receiving a negative performance e valuation would have been to pursue internal grievance procedures rather than qu it). In sum, the record contains no evidence that plaint iff was treated differently or denied the promotion because of his race. Nor is there any evidence of aggravating factors which made conditions intole rable. Finally, plaintiff had a reasonable alternative to resignation. Plaintiff h as failed to meet his burden of establishing a prima facie case of discrimination.
We AFFIRM the order of the district court.
SUBMITTED FOR THE COURT
Stephanie K. Seymour Chief Judge