10Cir Reinstates in Part La'Tonya Ford's Retaliation /Hostile Work Environment/Constructive Discharge Claims Against Jackson National

La'Tonya Ford is an African-American woman who worked at Jackson National Life Insurance ("Jackson") for about four years. During her time there, Ford allegedly suffered sex- and race-based discrimination; faced retaliation for complaining about her treatment; endured a hostile work environment; and was constructively discharged. After she left Jackson for another job, Ford sued the company for (1) discrimination; (2) retaliation; (3) hostile work environment; and (4) constructive discharge. 

Jackson moved for summary judgment. The district court granted Jackson's motion and dismissed all of Ford's claims. Ford now appeals, urging us to reverse the court on each claim. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the dismissal of her discrimination claim. But we reverse in part the dismissal of her retaliation claim; her hostile-work-environment claim; and her constructive-discharge claim.

[F]ord's argument that she was also discriminated against based on the terms and conditions of her employment. She argues: (1) that her supervisors continually reassigned her territories to others and required her to train her colleagues, lowering her earning potential, and (2) that her supervisors treated her unfairly by giving her untimely or missed quarterly evaluations.

In sum, Ford has failed to show that the realignment of her territories or her requirement to train others was discriminatory. We affirm the dismissal of her discrimination claim on these theories.

[F]ord has failed to demonstrate that she suffered an adverse employment action. First, she has provided insufficient evidence that she received later evaluations than her coworkers-she cites only her deposition without any other supporting evidence. Once again, this is insufficient to create an issue of material fact. See Denver Post, 203 F.3d at 756 (rejecting discrimination claim because the plaintiff had produced "no objective evidence of disparate treatment in the record"); see also Wheeler, 418 F. App'x at 751 (dismissing claim because the plaintiff "failed to provide the district court with sufficient objective evidence to support this allegation" because "the only evidence she cited in support of this allegation was her own deposition transcript" (emphasis added)). 

Even ignoring Ford's lack of evidence, she doesn't explain how her coworkers being given quarterly evaluations before her amounts to anything more than "a mere inconvenience." Jones, 617 F.3d at 1279 (quoting Sanchez, 164 F.3d at 532). Nor does she describe how these untimely or missed evaluations caused a "significant change in employment status." Id. (quoting Hillig, 381 F.3d at 1032-33). As a result, we agree with the district court that she has failed to make out a prima facie case of discrimination. 

In sum, we affirm the district court's dismissal of Ford's discrimination claim.  

a. Sex-Based Hostility 

We start with whether Ford has provided sufficient evidence of a sex-based hostile work environment. But before reaching the merits of this claim, we must first determine whether the district court erred in failing to consider the vodka-bottle incident from January 2008 and the football defacement from October 2010 as part of Ford's work environment. We conclude that the district court erred in refusing to consider the former, but correctly rejected consideration of the latter. 

We then consider whether the vodka-bottle incident, along with Ford's other evidence, supports a claim for a hostile work environment. As we explain below, a reasonable jury could find that Jackson maintained a sex-based hostile work environment. 

i. Vodka-Bottle Incident 

Recall that at a Jackson off-site work party in 2008, Ford alleges that one of Jackson's vice-presidents, John Poulsen, held a vodka bottle horizontally in his pelvic region, thrusted at her, and told Ford to "get on [her] knees." Appellant R. vol. 2 at 501. This so humiliated Ford that she left the party. Ford argues that this incident was more evidence of the sex-based hostility that she endured at Jackson. Jackson, on the other hand, argues that this conduct occurred outside the limitations period and bears no relationship to the other type of conduct she complains of, so we need not consider it as part of her claim. 

. . .

An event is part of the same hostile work environment when "the pre- and post-limitations period incidents involve[d] the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers." Id. (alteration in original) (citation omitted). But these factors aren't exhaustive. Hansen v. SkyWest Airlines, 844 F.3d 914, 923 (10th Cir. 2016). "Morgan 'does not limit the relevant criteria or set our factors or prongs.'" Id. (quoting McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 77 (2d Cir. 2010)). We must remain flexible "in a context as fact-specific and sensitive as employment discrimination and as amorphous as hostile work environment." Id. (quoting McGullam, 609 F.3d at 77). 

Here, the vodka-bottle incident occurred in January 2008, and Ford filed her first EEOC charge on December 7, 2009. Thus, the vodka-bottle incident, on its own, falls outside the 300-day limitations period. But that doesn't end our inquiry. We may still consider the incident if it is sufficiently like Ford's other sex-based complaints, such that it may be considered part of the "the same actionable hostile work environment practice."13 Morgan, 536 U.S. at 120. The district court found that "there [was] no indication that the vodka-bottle incident . . . is related to or part of any course of conduct connected with the other incidents that Ms. Ford cites." Appellant R. vol. 4 at 933-34. 

We disagree. We have previously concluded that "because [certain] instances of harassment [were] related by type, perpetrator, and location . . . the district court was wrong not to consider them as part of the same actionable hostile work environment practice." Hansen, 844 F.3d at 924. Ford complained that Jackson fostered a work environment that condoned the type of behavior where its workers could openly discuss "[g]irls gaining weight, [and the] size of their breasts," 

Appellant R. vol. 3 at 729; where its male employees would make comments about "female genitalia resembling roast beef," Appellant R. vol. 2 at 543; and where its employees could accuse their female coworkers of "trying to have sex with . . . advisors at different points," Appellant R. vol. 3 at 707. Even if Poulsen was not the same manager and this incident occurred only once, asking someone to "get on her knees" and thrusting a bottle at her is the same type of sex-based hostility that Ford has repeatedly complained of. And given that we must remain flexible in making such assessments, at the very least, Ford has "demonstrated a triable issue as to whether [the vodka-bottle incident] . . . constituted 'the same actionable hostile work environment practice.'" Hansen, 944 F.3d at 924. Thus, the district court erred by disregarding this incident from its analysis.

b. Race-Based Hostility 

Next, we turn to the race-based allegations of hostile work environment at Jackson. The district court rejected this claim for two main reasons. First, it concluded that though Ford complains that Bossert and other managers called her derogatory names-such as "bitches," "divas," "resident streets walkers," "Black bitches from Atlanta," and "Black Panthers"-Ford had "not alleged that she heard these comments." Appellant R. vol. 4 at 936 (internal citation omitted). This meant, according to the court, that Ford had failed to "establish a genuine dispute that such conduct unreasonably interfered with Ms. Ford's work performance, or that the environment at Jackson was both objectively and subjectively hostile." Id. Second, the court determined that a white coworker's use of the n-word in front of Ford while telling a story was not done with racial animus, such that its use alone created a hostile work environment. As a result, when viewing its use "in the context of other, overtly racially discriminatory conduct," the court concluded that Ford had experienced "isolated incidents of racial enmity or sporadic racial slurs" that were "insufficient to establish a triable issue of fact of a hostile work environment." Appellant R. vol. 4 at 937. 

We start with the district court's first reason for dismissal-that Ford had not heard these derogatory names. We conclude that the court erred in arriving at this conclusion. The court is correct that a plaintiff "may only rely on evidence relating to harassment of which she was aware during the time she was allegedly subject to a hostile work environment." Creamer v. Laidlaw Transit, Inc., 86 F.3d 167, 171 (10th Cir. 1996) (emphasis added) (citation omitted). And the court is also correct that Ford admits that she didn't hear some of Bossert's comments until after she left Jackson. Appellant R. vol. 4 at 975 ("After I left, I have since been made aware that Ms. Funchess and I were also referred to as 'pieces of shit,' and 'Black Panthers,' and Jackson's 'resident street walkers.'" (emphasis added)). 

But that doesn't mean that Ford was unaware of all the derogatory names she was called. Indeed, she has stated that "While [she] worked for Jackson, [she] was called 'black bitch' several times, and [she] knew that [] Ms. Funchess and [her] were referred to as 'black bitches from Atlanta' and that Bossert referred to us as Jackson's 'Black Panther Party.'" Appellant R. vol. 4 at 975 (emphasis added). Even if Ford did not personally hear these comments, she testified that she heard about these comments while she worked at Jackson. In fact, that is how Ford said that she learned about the "Black bitches from Atlanta" comment. See Appellant R. vol. 2 at 374 ("A: I know [Bossert] made one of these statements calling us Black bitches from Atlanta, he made that in a . . . supervisor's meeting where [Funchess] was not present, but Al Gannaway was. Q: Did Al tell you about what Mr. Bossert said? A: Yes, he did . . . . Q: It's when you were working in Denver? A: Yes."). In sum, the district court incorrectly found that Ford had not heard all these comments and thus erred in not considering this evidence as part of Ford's claim.

With that in mind, we turn to the district court's second reason for dismissal- that Ford had failed to raise a genuine issue of fact that she experienced a severe or pervasive hostile work environment based on race. When viewing the totality of Ford's evidence, including the names she was called and the use of the n-word, we conclude that a reasonable jury could find that Ford experienced a severe or pervasive hostile work environment on account of her race. 

The n-word is a "powerfully charged racial term." Lounds v. Lincare, Inc., 812 F.3d 1208, 1230 (10th Cir. 2015). Its use-even if done with benign intent and undirected at anyone specific-can contribute to a hostile work environment. See id. ("The important question is whether the repeated utterance of this term had the effect of contributing to the creation of a racially hostile work environment." (emphasis in original)); see also Savage v. Maryland, 896 F.3d 260, 277 (4th Cir. 2018) ("[A]n employer's repeated and continuous use of that slur, among others, to insult African- American employees and customers, even when not directed specifically at the complaining employee, is 'sufficiently severe or pervasive (or both)' to create an unlawful hostile work environment." (quoting Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001)). 

And here, Ford supplied other examples of racist comments beyond just the use of the n-word. For example, she said that after Obama was elected president, her coworkers made jokes about how "Watermelon is going to be on sale," and that "Chevy Impalas will be discounted." Appellant R. vol. 4 at 950. Ford alleges that these "offensive racist and sexist remarks . . . [were] made on a daily basis with impunity." Appellant R. vol. 2 at 467. Indeed, Blanchette even confirmed that Ford had told him that she had gone to "to one of the janitorial broom closets and cried it out" because someone "had made a racially inappropriate comment to her." Appellant R. vol. 3 at 589. Ford also said that she was called "black bitch" several times while working at Jackson. This includes Ford learning from a colleague that Bossert had called her a "Black bitch[] from Atlanta" in a supervisors' meeting while she was still at Jackson. 

In Freeman v. Dal-Tile Corp., 750 F.3d 413 (4th Cir. 2014), the Fourth Circuit stated: 

the use of the word "n* * * *r," coupled with the on-going offensive racial talk, use of the term "black b* * * *" on more than one occasion (once directed at a black employee), and sexual talk regarding black women, is sufficient evidence for a reasonable jury to find the race-based harassment was objectively severe or pervasive. 

Id. at 422. We agree. And many of these same circumstances appear here. Keeping in mind that "the severity and pervasiveness evaluation is particularly unsuited for summary judgment," we therefore conclude that a reasonable jury could find that Ford was subject to a severe or pervasive race-based hostile work environment. Hernandez, 684 F.3d at 958 (quoting O'Shea, 185 F.3d at 1098).

For these reasons, we affirm the dismissal of Ford's discrimination claim. But we reverse the dismissal of her retaliation claim (only on her failure-to-promote theory) and her hostile-work-environment claim. We also reverse and remand her constructive-discharge claim. 

• La'Tonya Ford
• Jackson National
• African American
• Discrimination
• Sex Discrimination
• Racial Discrimination
• Retaliaiont
• Hostile Workplace
• DCO
• 10Cir
• BrokeAndBroker
• Bill Singer