FILED

United States Court of Appeals

Tenth Circuit

July 9, 2015

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SUSAN G. BENNETT,

Plaintiff - Appellant,

v.

WINDSTREAM

COMMUNICATIONS, INC., a

Delaware corporation,

Defendant - Appellee.

No. 14-5091

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 4:13-CV-00222-GKF-TLW)

Courtney D. Powell (and Shannon F. Davies, with her on the brief), Lester,

Loving & Davies, P.C., Edmond, Oklahoma, for Plaintiff - Appellant.

Michael R. Pacewicz (and Christina F. Cupp, with him on the brief), Crowe &

Dunlevy, Tulsa, Oklahoma, for Defendant - Appellee.

Before KELLY, EBEL, and LUCERO, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellant Susan Bennett appeals from the district court’s grant of

summary judgment in favor of her employer, Defendant-Appellee Windstream

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Communications, Inc. (Windstream). Bennett v. Windstream Commc’ns, Inc., 30

F. Supp. 3d 1243, 1260 (N.D. Okla. 2014). Ms. Bennett brought several claims

alleging gender discrimination and retaliation under Title VII of the Civil Rights

Act of 1964 (Title VII), age discrimination under the Age Discrimination in

Employment Act (ADEA), violation of the Oklahoma Antidiscrimination Act

(OADA), and constructive discharge in violation of Oklahoma public policy and

federal law. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Background

In 2011, Windstream acquired the company that had employed Ms. Bennett

for twelve years, Paetec Communications, Inc. (Paetec). At the time of the

acquisition, Ms. Bennett was a Fiber Optic Tech III (FOT-III), responsible for

locating fiber optic cable, repairing, splicing, and testing it, and performing

routine weekly and monthly maintenance at various sites. II App. 360, 367. Her

service area generally covered Stroud, Kiefer, Tulsa, Muskogee, and Vian in

Oklahoma, and Ozark and Van Buren in Arkansas. Id. at 362. 

After the acquisition, Ms. Bennett’s pay and benefits remained the same. I

App. 212. Windstream employed written policies against workplace

discrimination, and its “People Practices” manual stated it “will not tolerate any

type of harassment or discrimination against any employee by coworkers,

management, customers or vendors.” Id. at 78. 

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A few months after Windstream assumed Paetec’s operations, Todd Moore

became Ms. Bennett’s supervisor. Mr. Moore also supervised other former Paetec

technicians located in Oklahoma and Missouri. Id. at 202–03. In April 2012, Mr.

Moore instituted a policy requiring all technicians, including Ms. Bennett, to

check in to an assigned manned office each morning at 8 a.m. unless they had

tasks to perform at other worksites. Id. at 203, 224–25. Ms. Bennett was

assigned to check in at the Tulsa office, which was the closest manned office to

her home in Gore, Oklahoma. Id. at 231–32. Given the distance between Gore

and Tulsa, Ms. Bennett was required to commute a total of almost four hours each

day. Prior to the acquisition, Ms. Bennett had worked out of a small office in a

regeneration site in Vian, Oklahoma, substantially closer to her home in Gore. II

App. 364–65. 

Ginine Stover, a Human Resources specialist, testified that the check-in

policy, though not written, was standard Windstream practice. I App. 213. 

Windstream provided several reasons for the policy, including the volume of

work and number of customers located in the Tulsa and northeastern Oklahoma

area. Id. at 203. Also, the check-in requirement enabled the integration of Paetec

into Windstream through employee cross-training. Id. at 203–04. Windstream

generally required technicians to store company vehicles on secured company

premises; technicians drove privately-owned vehicles to and from the office each

day. See id. at 234–35. The check-in policy was consistent with this procedure. 

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Ms. Bennett understood that she was required to report to the Tulsa office

each morning at 8 a.m. Id. at 226–27. Yet, she often arrived at the Tulsa office

more than two hours late. Id. at 204. On a number of occasions, she did not

report to the Tulsa office at all or left several hours early to drive home, rather

than working until 5 p.m. as required. Id. She informed Windstream she was

unable to make the long commute due to personal responsibilities. II App. 290. 

But, as Ms. Bennett conceded during oral argument, she never directly requested

an accommodation from the check-in requirement. Regardless, although

Windstream apparently does make certain workplace accommodations for its

employees, no such accommodations were available for this situation. Id. at

327–30. 

Donald Rogers, Area Manager of Operations for Windstream and Mr.

Moore’s direct supervisor, stated that Ms. Bennett’s time and attendance issues

made it impossible to implement a complete cross-training program for her. I

App. 204. Often, the Windstream technician with whom she was scheduled to

train had left the office to begin field work by the time she arrived in Tulsa midmorning. “Had Ms. Bennett complied with the requirement to report to the office

at 8:00 a.m., she would have received the same cross-training opportunities as all

other technicians.” Id. Ms. Bennett testified she was not aware of any employees

who were offered training opportunities not offered to her. Doc. 36-3 at 117. 

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Ms. Bennett received a “final coaching” session—the first disciplinary step

under Windstream’s progressive discipline policy—regarding her tardiness and

absences from Mr. Moore and Ms. Stover on May 22, 2012. I App. 217, 247. On

the same day, during a phone call, Ms. Bennett reported she was experiencing

chest and shoulder pain due to work-related stress. She stated she had an

appointment to visit a doctor the following day. II App. 411–13. Mr. Rogers

directed Mr. Moore to complete a workers’ compensation claim regarding her

potential injury pursuant to Windstream policy. I App. 249; II App. 411–12.

Windstream’s short term disability carrier, MetLife, requires an employee

to initiate a short term disability claim if the employee is out for more than three

consecutive days or several intermittent days. Ms. Bennett began a leave of

absence on May 28, 2012. I App. 254–55. Her last day of work was May 25,

2012, and MetLife issued short term disability benefits to her through June 27,

2012. Id. Windstream then paid out Ms. Bennett’s remaining vacation days and

other paid leave through July 27, 2012. Id. at 266; II App. 394–95.

On June 15, 2012, Windstream retrieved a company vehicle and tools that

had been assigned to Ms. Bennett. I App. 260. Ms. Stover and Mr. Moore

testified that, since Ms. Bennett was not using the vehicle and tools during her

leave, Windstream needed them to allow other technicians to perform their duties. 

Id. at 220, 236.

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On July 26, 2012, Windstream sent Ms. Bennett a letter giving her three

options: (1) return to work, (2) provide medical documentation supporting

continued short term disability leave, or (3) resign. She was required to elect one

of these options by 5 p.m. on August 3, 2012, or Windstream would “treat [her]

absence as job abandonment and terminate [her] employment effective that day.” 

Id. at 264. Ms. Stover testified that this “three options letter” is routinely sent to

Windstream employees who have taken a leave of absence and who have not

received an extension of short-term disability benefits from MetLife. Id. at

221–22. Ms. Bennett understood she would be deemed to have abandoned her job

if she did not elect one of the three listed options. Yet, instead of electing an

option, on the deadline she sent an email to Mr. Moore and Mr. Rogers, copying

Ms. Stover, stating that “[t]he discriminating conditions you have placed on me

have made it impossible to work for Windstream. . . . I have no choice but [to]

petition severance pay to support myself and health needs and get out from under

the constant state of distress.” Id. at 274.

On August 8, 2012, Ms. Stover sent Ms. Bennett a letter informing her that

her employment with Windstream had been “separated,” based on her failure to

return from the leave of absence. Id. at 266.

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Discussion

We review a grant of summary judgment de novo, applying the same legal

standard as the district court. Adamson v. Multi Cmty. Diversified Servs., Inc.,

514 F.3d 1136, 1145 (10th Cir. 2008). Summary judgment is appropriate only if

“the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact

is “material” only if it might affect the outcome of the suit under the governing

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute

over a material fact is “genuine” only if “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Id. The moving party bears

the burden of showing that no genuine dispute of material fact exists. Adler v.

Wal–Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). In considering a

motion for summary judgment, we draw all reasonable inferences in favor of the

nonmoving party. See Curtis v. Okla. City Pub. Sch. Bd. of Educ., 147 F.3d

1200, 1214 (10th Cir. 1998).

I. Title VII and ADEA Gender and Age Discrimination Claims

First, Ms. Bennett asserts claims of gender discrimination under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and age discrimination

under the Age Discrimination in Employment Act, 29 U.S.C. § 623. Under both

Title VII and the ADEA, a plaintiff bears the ultimate burden of proving her

employer intentionally discriminated against her. Riser v. QEP Energy, 776 F.3d

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1191, 1199 (10th Cir. 2015); Adamson, 514 F.3d at 1145. A plaintiff can prove

intentional discrimination through either direct evidence or circumstantial

evidence that creates an inference of intentional discrimination. Riser, 776 F.3d

at 1199.

Where, as here, a plaintiff seeks to use circumstantial evidence to show her

employer’s discriminatory intent, we employ the three-step burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 

Adamson, 514 F.3d at 1145. Under the McDonnell Douglas framework, a

plaintiff first must establish a prima facie case of gender or age discrimination. A

prima facie case generally requires a plaintiff to show, by a preponderance of the

evidence, that she is a member of a protected class, she suffered an adverse

employment action, and the challenged action occurred under circumstances

giving rise to an inference of discrimination.1

 E.E.O.C. v. PVNF, L.L.C., 487

1

 The district court analyzed Ms. Bennett’s prima facie case of

discrimination using a similar four-part articulation of the test. Bennett, 30 F.

Supp. 3d at 1253 (stating a plaintiff must show she is a member of a protected

class, she suffered an adverse employment action, she is qualified for the position

at issue, and she was treated less favorably than others not in the protected class). 

In McDonnell Douglas, the Supreme Court noted that the elements required for a

plaintiff’s prima facie case may vary depending on the context of the claim and

the nature of the alleged conduct. 411 U.S. at 802 n.13; accord Young v. United

Parcel Serv., Inc., 135 S. Ct. 1338, 1353–54 (2015). The Tenth Circuit has

utilized a number of similar versions of the test, expressing a preference for more

concise formulations. See, e.g., Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 n.4

(10th Cir. 2013) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

253 (1981)); Sorbo v. United Parcel Serv., 432 F.3d 1169, 1173 (10th Cir. 2005). 

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F.3d 790, 800 (10th Cir. 2007). While the elements of a prima facie case “are

neither rigid nor mechanistic, their purpose is the establishment of an initial

inference of unlawful discrimination warranting a presumption of liability in

plaintiff’s favor.” Adamson, 514 F.3d at 1146.

Once the plaintiff has established her prima facie case, the burden of

production shifts to the defendant to articulate a legitimate, nondiscriminatory

reason for its actions. Id. at 1145. Then, the burden of production shifts again to

the plaintiff to show that the defendant’s explanation was merely pretextual. “[A]

plaintiff’s prima facie case, combined with sufficient evidence to find that the

employer’s asserted justification is false, may permit the trier of fact to conclude

that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 148 (2000). The plaintiff may establish pretext by

showing “such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them unworthy of credence and hence

infer that the employer did not act for the asserted non-discriminatory reasons.” 

Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1280 (10th Cir. 2010).

A. Ms. Bennett Has Not Established a Prima Facie Case

Ms. Bennett maintains that, for purposes of Title VII and ADEA liability,

the only adverse employment action about which she complains is her

termination. The other employment actions she describes in detail serve to

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bolster her assertion of discriminatory animus. Aplt. Br. 15. We agree with the

district court that Ms. Bennett has not established a prima facie case of either

gender or age discrimination.

Both Title VII and the ADEA expressly prohibit discriminatory discharge

as an adverse employment action. 42 U.S.C. § 2000e-2(a)(1); 29 U.S.C.

§ 623(a)(1). As noted, Ms. Bennett was given three options upon the conclusion

of her short-term disability leave, consistent with Windstream’s routine practice:

return to work, provide the documentation necessary for additional disability

leave, or resign. Windstream informed her that failure to elect an option would

be treated as job abandonment. App. 264. The parties contest whether these facts

can support a claim of involuntary termination. We need not resolve this question

here because, in any event, Ms. Bennett has not produced evidence showing that

the alleged discharge occurred under circumstances giving rise to an inference of

discrimination.

Ms. Bennett asserts a number of Windstream’s actions suggest

discriminatory animus, including requiring Ms. Bennett to check in each morning

at the Tulsa office, instituting disciplinary proceedings against her when she

failed to do so, submitting a workers’ compensation claim form when Ms. Bennett

reported chest and shoulder pain, filing a short term disability claim on her

behalf, retrieving its vehicle and tools during her leave of absence, and denying

her cross-training opportunities. Although her burden of production at the prima

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facie stage is “not onerous,” Burdine, 450 U.S. at 253, Ms. Bennett points to no

evidence in the record, either direct or circumstantial, supporting a claim of

animus.

For example, Ms. Bennett asserts that Windstream’s motive in

implementing the daily check-in requirement was to enable the transfer of her

duties to preferred younger, male employees. She states that Mr. Moore’s policy

required “only Bennett—the only female FOT-III in the region—to ‘check in’

each morning in Tulsa.” Aplt. Br. 19. To the contrary, the record shows the

policy requiring check-in at a manned office applied uniformly to a number of

employees supervised by Mr. Moore. Ms. Bennett may have had the most

burdensome daily commute as a result of the new company policy, but she cites

no authority for the position that employers must account for their employees’

commutes when designing uniform attendance policies.

Ms. Bennett also asserts that “Windstream refused to consider [her]

eligibility for any of its flexible work schedule policies.” Id. But she conceded

she did not request any such accommodation, and the record shows Windstream

did not have any accommodation policy that would have assisted Ms. Bennett in

accomplishing her desired working arrangement.

Additionally, Ms. Bennett argues that Windstream refused to offer her

equivalent training opportunities. “Instead of being trained like the male

employees,” upon check-in she was “shuffled to a cubicle to fill out her expense

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reports.” Aplt. Br. 19. Yet, the record does not show Windstream denied Ms.

Bennett equal opportunities; instead, it shows Ms. Bennett was unable to

participate in the cross-training program Windstream openly offered to her

because of her attendance issues. Further, she has not identified evidence

showing that other technicians—of any age or gender—received training

opportunities she was not offered.

For these reasons, Ms. Bennett has failed to establish a prima facie case of

gender or age discrimination.

B. Ms. Bennett Has Not Shown Pretext

Even if Ms. Bennett could establish a prima facie case of gender or age

discrimination under the McDonnell Douglas framework, Windstream has

articulated several legitimate non-discriminatory reasons for the employment

actions about which Ms. Bennett complains. Most importantly, since Ms. Bennett

asserts her purported termination is the sole adverse employment action forming

the basis of her complaint, her separation from the company occurred only after

she declined to return to work or submit the documentation required for an

extended leave. Additionally, Windstream demonstrated that its check-in policy

was a standard practice intended to facilitate efficient work assignments and

enable integrative cross-training. Windstream stated Ms. Bennett’s training

opportunities were limited only because her own time and attendance problems

created logistical difficulties. Had she arrived for daily check-in at the required

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time, she would have received the same training opportunities as all other

technicians. Windstream reported Ms. Bennett’s alleged injury to its workers’

compensation carrier and the Oklahoma Workers’ Compensation Court because it

was required to do so by Oklahoma law. And Windstream’s short-term disability

policy applies equally to all employees and serves to ensure that injured

employees do not return to work prematurely. 

Ms. Bennett has failed to produce evidence that these—or any other—

explanations proffered by Windstream for its actions were merely pretextual. 

Although we must construe all facts favorably to Ms. Bennett, Curtis, 147 F.3d at

1214, in evaluating alleged pretext we must consider the facts as they appeared to

the decision-makers, Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1119 (10th

Cir. 2007). We will not second-guess an employer’s business judgment or replace

its opinion of best practices with either an employee’s opinion or our own. 

Garrison v. Gambro, Inc., 428 F.3d 933, 938 (10th Cir. 2005). Thus, we do not

ask whether an employer’s decisions were wise or fair; we ask only “whether the

employer honestly believed its reasons and acted in good faith upon them.” 

Riggs, 497 F.3d at 1118–19.

The Supreme Court has advised that, in determining whether evidence of

pretext can permit an inference of discrimination and avoid summary judgment,

relevant factors include “the strength of the plaintiff’s prima facie case, the

probative value of the proof that the employer’s explanation is false, and any

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other evidence that supports the employer’s case and that properly may be

considered.” Reeves, 530 U.S. at 148–49. As discussed above, Ms. Bennett has

failed to establish a prima facie case, and she has presented no evidence that the

reasons underlying Windstream’s policies and decisions are false. She highlights

that pretext can be shown by evidence of differential treatment of similarly

situated employees or procedural irregularities, Aplt. Br. 22, but she points to

evidence of neither.

In short, Ms. Bennett has demonstrated that Windstream’s new policies led

to a difficult employment situation for her, in stark contrast to the favorable

conditions she had enjoyed under different supervision for the previous twelve

years. Yet, she has failed to produce any evidence, either direct or circumstantial,

that these policies reflect discrimination on the basis of gender or age.

II. Title VII Retaliation Claim

Ms. Bennett next asserts a claim of retaliation in violation of Title VII. 

Title VII prohibits retaliation against an employee who has “opposed” any

practice made unlawful by Title VII, or who has “participated in any manner in an

investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e3(a). Title VII retaliation claims require an employee to demonstrate that, but for

her protected activity, she would not have faced the alleged adverse employment

action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013). In

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accordance with our analysis above, we conclude that Ms. Bennett cannot meet

this burden. 

III. OADA Claim

Ms. Bennett also asserts a claim of gender and age discrimination under the

Oklahoma Antidiscrimination Act (OADA). Okla. Stat. Ann. tit. 25, § 1302. The

OADA makes it unlawful for an employer to “fail or refuse to hire, to discharge,

or otherwise to discriminate against an individual with respect to compensation or

the terms, conditions, privileges or responsibilities of employment” because of

sex or age. Id. § 1302(A)(1). The statute allows a defending party to “allege any

defense that is available under Title VII of the Civil Rights Act of 1964 [or] the

Age Discrimination in Employment Act.” Id. § 1350(F). Along with her Title

VII and ADEA discrimination claims, Ms. Bennett’s OADA claim fails for the

reasons outlined above. 

IV. Constructive Discharge Claim

Finally, Ms. Bennett asserts a separate claim of constructive discharge in

violation of Title VII and the public policy of Oklahoma. We agree with the

district court that, to the extent her claim is based on a violation of Oklahoma

public policy, such claims are no longer viable. Id. § 1101(A) (stating the OADA

provides exclusive remedies under Oklahoma law for individuals alleging sex or

age discrimination in employment). Under federal law, “[c]onstructive discharge

occurs when the employer by its illegal discriminatory acts has made working

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conditions so difficult that a reasonable person in the employee’s position would

feel compelled to resign.” Sanchez v. Denver Pub. Sch., 164 F.3d 527, 534 (10th

Cir. 1998) (quoting Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir. 1986)). 

To establish constructive discharge, a plaintiff must show that “she had no other

choice but to quit.” Sandoval v. City of Boulder, Colo., 388 F.3d 1312, 1325

(10th Cir. 2004). We apply an objective standard: “The conditions of

employment must be objectively intolerable; the plaintiff’s subjective views of

the situation are irrelevant.” Sanchez, 164 F.3d at 534.

Ms. Bennett’s constructive discharge claim fails. For the reasons outlined

in the preceding sections, Ms. Bennett has shown neither that Windstream

engaged in any illegal discriminatory conduct, nor that such conduct was so

extreme that she had no realistic option but to resign.

AFFIRMED.

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