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

### DEC 31 1998 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SUSAN SANCHEZ, Plaintiff-Appellant,

v. DENVER PUBLIC SCHOOLS, DefendantAppellee, and DENVER CLASSROOM TEACHER’S ASSOCIATION, Defendant. No. 97-1120

Appeal from the United States District Court for the District of Colorado (D.C. No. 95-D-738)
Elizabeth Lamb Kearney, Law Offices of Elizabeth La mb Kearney, Denver, Colorado, for Plaintiff-Appellant. Martin Semple (Patrick B. Mooney and John A. McNamara, with him on the brief), of Semple & Mooney, P.C., Denver, Colorado, for Defendant-Appellee.1 Ms. Sanchez also alleged that the Denver Classroom Teacher’s Association

was liable for breach of contract and breach of duty of fair representation. She does not appeal the district court’s grant of judg ment against her on these claims.

2 The exercise of appellate jurisdiction is appropriate here even though Ms. Sanchez filed her notice of appeal prematurely. Th is court first issued an order requiring Ms. Sanchez to obtain certification underFed. R. Civ. P. 54(b) or a final judgment, and later issued a show cause orderas to why the appeal should not be dismissed. We then issued a notice on Augus t 11, 1997, that failure to respond within ten days could result in dismissal. The next day the district court -2- Before SEYMOUR , Chief Judge, BALDOCKand BRISCOE , Circuit Judges.

SEYMOUR , Chief Judge.
Susan Sanchez brought this action under Title VII, 42 U.S.C. §§2000 et.
seq. , and the Age Discrimination in Employment Act (ADE A), 29 U.S.C. §§621 et
seq. , against her former employer, Denver Public School s (DPS). The District Court granted DPS’s motion for summary judgment on all claims. At issue in this appeal are Ms. Sanchez’s allegations that 1) DPS tr ansferred her to a teaching position at Beach Court elementary school in violat ion of Title VII and ADEA; 2) DPS retaliated against her because she filed a disc rimination complaint; 3) DPS failed to place her in a Chapter I van teacher posi tion because of her sex and age, and in retaliation for filing a discrimination comp laint; 4) DPS constructively discharged her; and 5) the district court erred in denying her motion under Fed. R. Civ. P. 60 (b). 1 We affirm for the reasons set forth below. 2entered a final judgment dismissing the case in its entirety. On August 19, 1997,

Ms. Sanchez submitted a copy of the final judgment to this court, thereby ripening her premature appeal. See Lewis v. B.F. Goodrich850 F.2d 641, 644 (10th Cir. 1988) (en banc). We held in Lewis that “when a district court has adjudicated all remaining outstanding claims before this appellate court acts to dismiss the appeal, we will consider the appeal on its merits r ather than dismiss for lack of jurisdiction.” Id. In the instant case, we had not yet acted to dism iss the appeal. Appellee’s arguments notwithstanding, we see no rea son to depart from Lewis

. -3- I. Ms. Sanchez began her employment with DPS in 1979. Prior thereto, she had been a nun, a teacher in Catholic schools for twenty-four years, and a principal for five. In August 1979, she became a t eacher at Johnson Elementary, a position she held until the summer of 1993. In the spring of 1993, the administration at Johnso n realized that the fourth grade enrollment would be decreasing the following school year and that they would not be able to retain all three of the fourth grade teachers teaching there. Because none of the teachers volunteered to transfe r, the Personnel Subcommittee, consisting of three teachers and the principal, interviewed them to decide who would be transferred. After interviewin g all three candidates, the Personnel Subcommittee decided to transfer Ms. Sanc hez and retain two younger, male teachers. Upset by this decision, Ms. Sanchez filed a complaint with the teacher’s union, and then with the EEOC. DPS reassigned Ms. Sanchez to a second grade teach er position at Beach-4-

Court Elementary. Ms. Sanchez’s displeasure with the transfer only worsened after interacting with Beach Court’s principal, Luc ia Aandhal. Relations between the two started off poorly and did not improve thro ughout Ms. Sanchez’s tenure at Beach Court. According to Ms. Sanchez, at the begi nning of the first faculty meeting Ms. Aandhal introduced all the new teachers except her, and said something like, “it is so nice to have some beginni ng bright, young teachers in the building.” Aplt. App. at 90-91. At the end of the meeting, and after prompting, Ms. Aandhal introduced Ms. Sanchez and mentioned th at she was transferred from Johnson, a fact Ms. Sanchez found embarrassing

. Ms. Aandhal allegedly made several other ageist com ments during the school year. In addition, Ms. Aandhal required Ms. Sanchez to bring in a doctor’s note whenever she took sick leave, even though othe r teachers were not required to do so. Later in the year, Ms. Aandhal threatene d to put Ms. Sanchez on a plan for improvement. In April 1994, Ms. Aandhal called Ms. Sanchez into her office to determine whether she would be returning to Beach Court the n ext year. Although evasive at first, Ms. Sanchez eventually told Ms. Aandhal s he was not planning to return. Despite Ms. Aandhal’s repeated requests, Ms. Sanche z never put her intentions in writing. During the spring of 1994, Ms. Sanchez’s health det eriorated due to stress-5-

and her doctor recommended that she take a leave of absence from Beach Court. Ms. Sanchez had the administrative choice of eitherusing her sick leave, of which she had accumulated a great deal, or taking a forma l leave of absence. She chose the former. In May 1994, DPS engaged in its annual county-wide process of reassigning teachers within the district. At that time Ms. Sanchez did not ask to be reassigned. She stated she was under the impres sion that she would be transferred automatically because she thought she h ad a one-year assignment at Beach Court. Later that summer she requested a tra nsfer, but DPS said it would be unable to grant her one because the reassignmentprocess had already occurred. DPS further told her she would be expected to fulfi ll her assignment at Beach Court. According to Ms. Sanchez, in mid-August Estelle Uri oste contacted her about a new opening as a Chapter I van teacher, a p osition in which a DPS teacher would drive to parochial schools to assist students with special needs. They met that day and Ms. Urioste asked Ms. Sanchez about her background, showed her one of the vans used in the program, andrequested a copy of her driving record. Ms. Sanchez obtained a copy of herdriving record for Ms. Urioste. Later that day, Ms. Urioste called her an d told her the position would not be available until December. About a month later, Ms. Sanchez found out from a3 In setting out the facts, we do not consider the af fidavits Ms. Sanchez submitted with the Fed. R. Civ. P. 60(b) motion she filed after summary judgment was entered against her. That rule allows for reli ef from judgment for “(1) mistake, inadvertence, surprise, or excusable negle ct; [or] (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) . . . .” Nowhere does Ms. Sanchez allege she could not obtain the affidavits prior to the summary judgment hearing; to the contrary, she admits she had the evidence prior to the hearing but felt it “would be cumulative and would not materially assist the Court in its determination.” Aplt. App. at 308. The district court declined to consid er these affidavits, and did not abuse its discretion in doing so. We decline as we ll to consider the additional -6- friend who was a Chapter I van teacher that DPS hadfilled the position with a young man, Andy Lurie. Mr. Lurie was a non-tenured , probationary teacher who had not received his Master’s degree at that time. Unable to find a position she considered suitable, Ms. Sanchez continued to take sick leave throughout the fall of 1994. Durin g that time, DPS offered her a position as an English As a Second Language (EASL) teacher, but Ms. Sanchez declined because she had previously applied for a s imilar job and had been told she was not qualified for it. As Ms. Sanchez’s sick leave began to run out, she d ecided to opt for early retirement. She applied for early retirement in mi d-December, effective January 25, 1995. The agreement could not be rescinded les s than 30 days before it was to take effect. On December 30, DPS stated that itwould have two openings, and that Mrs. Sanchez would have been able to take eith er one, except her early retirement rendered her ineligible. 3evidence on appeal.

-7- II. We review a grant of summary judgment de novo , “examin[ing] the factual record and reasonable inferences therefrom in the l ight most favorable to the party opposing summary judgment.” Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996) (citations omitted). A grant of summary judg ment is appropriate if there is no genuine issue of material fact. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly prec lude the entry of summary judgment.” Id. at 248.

A. Sex and Age Discrimination Claims The plaintiff in both ADEA and Title VII cases bear s the initial burden of setting forth a prima facie case of discrimination. The elements of each closely parallel the other. In either case the plaintiff m ust show: 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; and4) she was treated less favorably than others not in the protected class. See Thomas v. Denny’s Inc. , 111 F.3d 1506, 1510 (10th Cir. 1997) (race); Corneveau x v. Cuna Mut. Ins. Group , 76 F.3d 1498, 1502 (10th Cir. 1996) (age); Jones v. Unisys Corp. , 54 F.3d 624,4 We note that DPS does not base its administrative t ransfer decisions solely

on seniority; instead, it relies on interviews with the Personnel Subcommittee which is composed of teachers and a principal. Suc h a system comports with the requirements of the ADEA. See Jones v. Unisys Corp. , 54 F.3d 624, 630 n.6 (10th Cir. 1995). -8- 630 (10th. Cir. 1995) (age); Cole v. Ruidoso Mun. S ch. , 43 F.3d 1373, 1380 (10th Cir. 1994) (sex). Once the plaintiff establishes aprima facie case, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for the action. If the defendant does so, the plaintiff mu st show the defendant’s proffered reasons are pretextual. See Jones , 54 F.3d at 630. In the instant case, Ms. Sanchez alleges two counts of sex and age discrimination: one based on the transfer to Beach Court and the other on DPS’s failure to place her in the Chapter I van teacher p osition. We consider each in
turn. 1. The Beach Court Transfer Ms. Sanchez argues the district court erred in hold ing that she did not establish a prima facie case of discrimination rega rding her transfer to Beach Court. 4 In particular, she disputes the district court’s finding that she suffered no adverse employment action. The Tenth Circuit liberally defines the phrase “adv erse employment action.” See Gunnell v. Utah Valley State College , 152 F.3d 1253, 1264 (10th. Cir. 1998); Jeffries v. Kansas , 147 F.3d 1220, 1232 (10th Cir. 1998). Such-9-

actions are not simply limited to monetary losses i n the form of wages or benefits. See Berry v. Stevinson Chevrolet , 74 F.3d 980, 986-87 (10th Cir. 1996). Instead, we take “a case-by-case approach,” examining the un ique factors relevant to the situation at hand. Jeffries , 147 F.3d at 1232. Nevertheless, we will not cons ider “a mere inconvenience or an alteration of job respo nsibilities” to be an adverse employment action. Crady v. Liberty Nat’l Bank & T rust Co. , 993 F.2d 132, 136 (7th Cir. 1993); see also Burlington Indus., Inc. v. Ellerth , 118 S.Ct. 2257, 2268 (1998) (conduct is adverse employment action if it “constitutes a significant change in employment status, such as hiring, firing , failing to promote, reassignment with significantly different responsib ilities, or a decision causing a significant change in benefits”); Spring v. Sheboyg an Area Sch. Dist. , 865 F.2d 883, 886 (7th Cir. 1989) (principal’s change in ass ignment was not an adverse employment action despite her increased commute and belief that the public perceived the transfer “as a ‘nudge towards retirem ent’”). We agree with the district court that Ms. Sanchez’s transfer was not an adverse employment action. Ms. Sanchez points onlyto the fact that her commute increased from between five and seven minutes to be tween thirty and forty minutes, and that the other two teachers at Johnsondid not volunteer to transfer schools. Ms. Sanchez admits that her salary and be nefits remained the same, that she continued to teach at the elementary school lev el, and that the decreasing-10-

student population at Johnson prompted the transfer . Although she claims the Beach Court assignment was only for a year, she kne w that after that year she would remain a DPS teacher, and she expected DPS to reassign her. We do not find any special circumstances unique to this case that show this employment action was anything beyond a mere inconvenience or alteration of job responsibilities. Because Ms. Sanchez experienced a purely lateral transfer, we agree with the district court that despite her pers onal discomfort she failed to establish a prima facie case of discrimination. 2. The Van Teacher Position Ms. Sanchez alleges that by failing to place her as a Chapter I van teacher, DPS discriminated in violation of ADEA and Title VI I and unlawfully retaliated against her. The district court addressed only the retaliation claim and did not directly discuss the Title VII or ADEA discriminati on claims arising out of DPS’s failure. We need not remand, however, because this claim can be resolved on the basis of undisputed facts and for substantially the same reasons applicable to Ms. Sanchez’s Beach Court discrimination claim. As set out above, in order to establish a prima fac ie case of discrimination under either Title VII or ADEA, Ms. Sanchez must es tablish that the challenged conduct constituted an adverse employment action. The record is undisputed that at the time Ms. Sanchez applied for the position as a Chapter I van teacher, she5 This case does not involve an employer’s refusal to reassign an employee

to a vacant lateral position in the wake of a reduc tion in force, which refusal to transfer could constitute an adverse action. See Anderson v. Phillips Petroleum Co. , 861 F.2d 631, 635 (10th Cir. 1989).

6 If a transfer is truly lateral and involves no sig nificant changes in an employee’s conditions of employment, the fact that the employee views the transfer either positively or negatively does not o f itself render the denial or receipt of the transfer adverse employment action. See, e.g. , Doe v. Dekalb County Sch. Dist. , 145 F.3d 1441, 1449-50 (11th Cir. 1998) (collecti ng cases). -11- was employed with DPS. 5 It is also undisputed that the van position wouldhave paid the same salary and benefits she was already r eceiving, and would have involved substantially similar duties. Thus, the p osition would have been a purely lateral transfer for Ms. Sanchez involving at most an insignificant alteration in job responsibilities. While Ms. Sanchez obviously viewed the change as a positive one, under the law cited above, and in the unique circumstances of this case, her failure to receive the position was not a n adverse employment action for the same reasons her transfer to Beach Court was no t. 6
B. Retaliation Claims A plaintiff claiming unlawful retaliation for asserting a Title VII or ADEA claim also bears the initial burden of establishing a prima facie case. To do so she must show: 1) she was engaged in opposition to Title VII or ADEA discrimination; 2) she was subjected to adverse emp loyment action; and 3) a causal connection existed between the protected act ivity and the adverse employment action. See Gunnell , 152 F.3d at 1262-63; Jeffries , 147 F.3d at 1231;-12-

Anderson v. Phillips Petroleum Co. , 861 F.3d 631, 634 (10th Cir. 1988). A meritorious retaliation claim will stand even if th e underlying discrimination claim fails. See Jeffries , 147 F.3d at1231. Ms. Sanchez contends DPS unlawfully retaliated agai nst her on two occasions for filing a discrimination claim. She a lleges first that Ms. Aandhal retaliated against her by subjecting her to a hosti le environment, and second that DPS retaliated against her by failing to place her in the Chapter I van teacher position. Again, we consider these claims in turn. 1. Retaliation at Beach Court The district court granted summary judgment on Ms. Sanchez’s Beach Court retaliation claim, holding that she did not s uffer an adverse employment action because she clearly had a job offer for the following year. We affirm the district court’s ruling, albeit under a slightly di fferent analysis. Ms. Sanchez points to several encounters with Ms. A andhal to support her contention that she was subjected to retaliatory ad verse employment action at Beach Court. Ms. Aandhal allegedly made several ag eist remarks over the course of the school year, including calling an older subs titute teacher “an old fossil” and welcoming “bright young teachers” at the first staf f meeting. In addition, Ms. Sanchez believed she was the only teacher required to bring a doctor’s note when she was sick. Ms. Aandhal also threatened to write her up for insubordination-13-

when Ms. Sanchez walked out of her office in the mi ddle of a meeting to tend to her class. Finally, Ms. Sanchez asserts that Ms. A andhal threatened to put her on a plan for improvement if she returned to Beach Cou rt. This conduct simply does not rise to the level of amaterially adverse employment action sufficient to satisfy the second prong of the prima facie case. Courts considering the issue have held that “‘unsub stantiated oral reprimands’ and ‘unnecessary derogatory comments’” such as thos e alleged here are not included within the definition of adverse action ab sent evidence that they had some impact on the employee’s employment status. S ee , e.g. , Robinson v. City of Pittsburgh, 120 F.3d 1286,1301 (3d Cir. 1997); see also Sweene y v. West , 149 F.3d 550, 556-57 (7th Cir. 1998). Retaliatory conduct other than discharge or refusal to rehire is thus proscribed by Title VII only if it alters the emplo yee’s “compensation, terms, conditions, or privileges of employment,” or adversely affect[s] his [or her] status as an emplo yee.” It follows that “not everything that makes an employee unhappy ” qualifies as retaliation, for “[o]therwise, minor and even trivi al employment actions that ‘an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.’” Robinson , 120 F.3d at 1300 (alteration in original) (quotin g Smart v. Ball State Univ. , 89 F.3d 437, 441 (7th Cir. 1996)). Although we appreciate Ms. Sanchez’s distress over Ms. Aandhal’s alleged disagreeable co nduct, that conduct did not significantly affect her employment status and ther efore did not constitute adverse employment action remediable under Title VII.-14-

2. Retaliation by Failure of Placement in Van Teacher Position Ms. Sanchez also asserts that Ms. Urioste unlawfull y retaliated against her by failing to place her in the Chapter I van teache r position. The district court denied this motion because it found no evidence of a causal connection between Ms. Sanchez’s protected activity and the conduct sh e asserts was retaliatory. We have already determined that Ms. Sanchez’s failu re to obtain the position was not adverse action with respect to herdiscrimination claim. That holding is equally applicable here and is sufficien t to defeat her retaliation claim as well. In addition, as the district court noted, Ms. Sanchez did not establish a causal connection between the filing of her discrim ination claim and her nonplacement in the van teacher position. Ms. Sanc hez claims that Anna Marie Sandoval, an activist involved in DPS and a friend of Ms. Urioste, called her to ask what her age was after Ms. Sanchez did not get the van teacher position. Ms. Sandoval showed no sign of knowing about Ms. Sanche z’s discrimination claims, or of having discussed them with Ms. Urioste. Ms. Urioste testified in her deposition that she had no knowledge of Ms. Sanchez ’s discrimination claim. Moreover, according to Ms. Sanchez, Ms. Sandoval’s phone call took place after the decision was already made. Even when all reaso nable inferences are drawn in favor of Ms. Sanchez, she has failed to establish aprima facie case of retaliation. We thus affirm the dismissal of this retaliation cl aim.-15- C. Constructive Discharge Ms. Sanchez also contends the district court erred by granting summary judgment on her claim that DPS constructively disch arged her by forcing her to accept early retirement rather than finding her a s uitable transfer. We agree with the district court that DPS’s actions do not amountto a constructive discharge. Constructive discharge occurs when “the employer byits illegal discriminatory acts has made working conditions so difficult that a reasonable person in the employee’s position would feel compel led to resign.” Derr v. Gulf Oil Corp. , 796 F.2d 340, 344 (10th Cir. 1986). “Essentially , a plaintiff must show that she had ‘no other choice but to quit.’” Yearous v. Niobrara County Mem’l Hosp. , 128 F.3d 1351, 1356 (10th Cir. 1997) (quoting Woo dward v. City of Worland , 977 F.2d 1392, 1401 (10th Cir. 1992)). The condi tions of employment must be objectively intolerable; the “plaintiff’s s ubjective views of the situation are irrelevant.” Id. According to Ms. Sanchez, the hostile work environm ent at Beach Court, in conjunction with DPS’s insistence that she return t o her placement there and its failure to find her a suitable alternative transfer , resulted in her constructive discharge. As we discussed above, however, the work environment at Beach Court, while unpleasant, was not adverse employmentaction. Furthermore, it is undisputed that Ms. Sanchez did not apply for a tra nsfer in May when that process-16-

occurs for DPS. Later, DPS told her there might be some openings in January, at the semester break. Instead of taking her position at Beach Court temporarily and waiting to see if a more suitable position would op en up, she chose to take early retirement. While we have no doubt that Ms. Sanche z found her working conditions extremely difficult, and that the stress exacerbated her health problems, we cannot conclude that objectively DPS’s actions left Ms. Sanchez with no choice but to resign. We therefore affirm the district court’s dismissal of the constructive discharge claim.

III. In sum, we AFFIRM the district court’s grant of summary judgment in favor of defendants in all respects.