Alexander v. Orrklahoma East LLC

1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CRYSTAL KAY ALEXANDER, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-24-1144-PRW
)
ORRKLAHOMA EAST, LLC, 	)
)
Defendant. 	)
ORDER
Before the Court is Defendant Orrklahoma 	East’s Motion for Partial Summary
Judgment (Dkt. 22). This matter has been fully briefed and is ripe for decision. For the
reasons 	that follow, Defendant’s 	Motion 	for Partial Summary 	Judgment (Dkt. 22) is
GRANTED.
Background
The following is a summary of the material facts. Where a fact is disputed, that
dispute is noted.
The parties and the job. This employment 	discrimination 	action arises out of
Plaintiff Crystal Kay Alexander’s employment with Defendant Orrklahoma East, LLC,
which does business as Orr Nissan. (“Orr” or just “Defendant”). Orr Nissan is a car
dealership that sells new and used cars.1 Plaintiff Crystal Kay Alexander began at-will
1 Mot. for Partial Summ. J. (Dkt. 22), at 7, ¶ 1.
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employment on or about February 12, 2020, as a commission-based Sales Team Member. 2
She had no prior car sales experience.3
Policies 	and 	training. 	On 	the 	day 	she 	was 	hired, 	Plaintiff 	signed 	an
acknowledgment that company documents, including the handbook and policies, could be
accessed electronically, that she had been given access instructions, and that annual online
training was mandatory. No one forced her to sign it.4 Plaintiff received a login for
electronic access to these documents, logged in, saw HR policies, and completed training
and annual modules.5
The Orr handbook states that the company is an equal-opportunity employer and
prohibits sex discrimination, prohibits harassment including sexual harassment, and has an
open-door process directing an employee first to the supervisor and then to the General
Manager, Comptroller, or a confidential report to Human Resources, without retaliation for
a good-faith report.6 Plaintiff signed the No Harassment Policy acknowledgment, including
the requirement of an immediate report.7
2 Id. at 7, ¶ 6.
3 Id. at 8, ¶ 7.
4 Id. at 8, ¶ 11; Pl.’s Dep. (Dkt. 22-2), at 93:19–95:23.
5 Mot. for Partial Summ. J. (Dkt. 22), at 8, ¶¶ 12–13; Employee Handbook (Dkt. 22-8), at
2, 9.
6 Mot. for Partial Summ. J. (Dkt. 22), at 9, ¶¶ 14–18.
7 Id. at 9, ¶ 19.
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The handbook FMLA policy provides up to twelve weeks of leave, including for
the employee’s serious health condition, defined to include inpatient care or continuing
care by a licensed provider, and states that foreseeable leave requires thirty days’ notice
and that the employee must give HR verbal or written notice.8
Diverted sales. While working as a salesperson, much of Plaintiff’s work involved
generating and handling so-called “sales leads,” i.e., customers who were interested in
buying cars. Some sales leads were generated “on the lot,” by approaching potential buyers
walking up to the store, while others were generated through phone, email, and internet
communications.9 The latter were typically funneled through Orr’s Business Development
Center (“BDC”), which used a database to assign leads to the salesperson 	who first
established 	the relationship 	with the lead.10 The 	BDC was staffed with two female
employees.11 Each salesperson earned commissions when they sold a vehicle.12 Plaintiff
alleges she was paid under a pay plan of $150 per unit.13
8 Id. at 9, ¶ 20; Employee Handbook (Dkt. 22-8), at 3–7.
9 Mot. for Partial Summ. J. (Dkt. 22), at 7, ¶¶ 2–3.
10 Id. at 7, ¶¶ 2-3, 5; Pl.’s Dep. (Dkt. 22-2), at 79:9–20.
11 Mot. for Partial Summ. J. (Dkt. 22) at 7, ¶ 4; Pl.’s Dep. (Dkt. 22-2), at 77:9–22.
12 Mot. for Partial Summ. J. (Dkt. 22), at 7, ¶ 6.
13 Pl.’s Resps. to Interrogs. (Dkt. 22-7), at 20, Interrog. No. 8.
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Plaintiff alleges that the female BDC employees, who were women, diverted her
leads to male salesperson 	in exchange for kickbacks 	from those male 	salespeople. 14
Plaintiff acknowledges that male counterparts also had their leads diverted pursuant to this
kickback scheme.15 She also claims that males salespeople sometimes “stole” her leads,
separate and apart from the BDC kickback scheme.16 She claims lost wages of $48,960 for
2020–2023 from lost sales and bonuses.17
Plaintiff does not contend that Orr managers instructed BDC employees to divert
her leads.18 She claims, 	however, that when she complained 	about the female BDC
employees diverting her leads and other stolen leads, Orr management did nothing to stop
the diversions. She claims that when her male counterparts complained about the BDC
kickback scheme to management, their complaints were addressed.19
Plaintiff 	acknowledges 	that the BDC diversions 	were 	financially 	motivated.20
Defendant also points to market conditions that it says caused a sales slowdown in the
relevant period and which it says explains Plaintiff’s diminished sales.21
14 Pl.’s Dep. (Dkt. 22-2), at 167:18–171:13.
15 Id. at 170:10–24.
16 Pl.’s Aff. (Dkt. 33-14), at 1, ¶ 7.
17 Pl.’s Resps. to Interrogs. (Dkt. 22-7), at 20, Interrog. No. 8.
18 Pl.’s Dep. (Dkt. 22-2), at 168:24–169:5.
19 Id. at 170:24–171:13.
20 Id. at 170:4–9.
21 Mot. for Partial Summ. J. (Dkt. 22), at 8, ¶¶ 8–9.
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Complaints. Plaintiff contends she made a verbal complaint of sex discrimination
and harassment to the HR representative Nicole Stevens in early 2022.22 Then on June 24,
2023, she filed a HR incident report asserting 	sex discrimination 	and harassment.23
Defendant does not dispute that this incident was protected activity. In response 	to
interrogatories, Plaintiff also alleges that she made earlier oral complaints and text message
about diverted customers, beginning July 31, 2020.24
Alleged sex-based treatment. Plaintiff sold her first vehicle on February 22, 2020,
ten days after being hired.25 Plaintiff alleges she was kept off the sales floor until she passed
certain Nissan 	exams, while a male 	salesperson 	was allowed 	on the floor and with
customers before passing his exam.26
Plaintiff alleges she was assigned non-sales tasks not given to male new hires and
that she was the only salesperson ordered to cover reception because “no one wants to hear
a man answer the phones.”27
22 Pl.’s Resps. to Interrogs. (Dkt. 22-7), at 4–17, Interrog. Nos. 1, 3–4.
23 Incident Report (Dkt. 22-12).
24 Pl.’s Resps. to Interrogs. (Dkt. 22-7), at 6–13, Interrog. No. 2.
25 Id.
26 Id.
27 Id.
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Plaintiff alleges that on June 23, 2023, after she complained to a supervisor about a
diverted lead, she was screamed at in front of customers and told she could pack her things
and get out.28
December 22 leave. Plaintiff contends that in late December 2022, she had RSV, a
respiratory condition with COVID-like symptoms, and that she gave notice to Orr by way
of a December 30, 2022 doctor’s note and by text to an Orr employee. She says she was
never told FMLA might apply. Plaintiff has not alleged that the RSV required inpatient
care, more than one visit to the doctor, or a regimen of continuing treatment, She has also
not presented evidence that she lost pay, was disciplined, denied leave, or otherwise was
harmed by the alleged failure of Defendant to tell her that her illness might be covered by
FMLA.
October 2023 transfer. Aaron Mount became General Manager of Orr Nissan on or
about April 1, 2023, and was Plaintiff’s direct supervisor 	until she moved to Service
Advisor.29 In October 2023, Mount offered Plaintiff a Service Advisor, or “Title Service
Advisor,” position, which he says he offered because it is customer-facing and Plaintiff’s
customer-service skills were above average. Mount says he did not force, coerce, or require
Plaintiff to accept the transfer.30
28 Id.
29 Mount Aff. (Dkt. 22-3), at 1, ¶¶ 3–4.
30 Id. at 2, ¶¶ 9–10.
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Plaintiff accepted the transfer around October 17, 2023.31 In a response to a request
for admission, Plaintiff unqualifiedly admitted that she voluntarily accepted the transfer.32
Plaintiff also acknowledges that Mount never said he would fire her if she refused. In
subsequent responses to interrogatories and in deposition testimony, Plaintiff qualified her
admission that she voluntarily accepted the transfer by claiming that she felt pressured to
accept the transfer.33
Plaintiff remains employed 	as a Service Advisor.34 She contends the positions
differs from her sales position in a material way: sales had team support, recognition, two
days off, and a flexible schedule, while service lacks team support, requires her to work six
days a week, offers little recognition, and forces her to deal with unhappy customers.35
Plaintiff’s claims. In her Amended Complaint, Plaintiff brings claims under Title
VII for sex-discrimination, sexual harassment, and retaliation. Plaintiff also brings claims
under the FMLA for interference with her FMLA rights. Defendant filed this Motion for
Partial Summary Judgment, as to Plaintiff’s sex-discrimination, 	retaliation, and FMLA
31 Mot. for Partial Summ. J. (Dkt. 22), at 11, ¶ 28.
32 Id.; Pl’s Resps. to Reqs. for Admiss. (Dkt. 22-13), at 5, Req. No. 5.
33 Pl.’s Resps. to Interrogs. (Dkt. 22-7), at 21–22, Interrog. No. 16; Pl.’s Dep. (Dkt. 22-2),
at 351:6–352:7.
34 Mot. for Partial Summ. J. (Dkt. 22), at 11, ¶ 30; Pl’s Resps. to Reqs. for Admiss. (Dkt.
22-13), at 5, Req. No. 4.
35 Pl.’s Aff. (Dkt. 33-14), at 2–3, ¶¶ 12–15.
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interference claims. Defendant has not moved for summary judgment on Plaintiff’s sexual
harassment claim.
Legal Standard
Rule 56(a) of the Federal Rules of Civil Procedure requires “[t]he court [to] grant
summary judgment 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.” In considering a motion for
summary judgment, the Court views all facts and reasonable inferences in the light most
favorable to the nonmovant.36 Courts are not to weigh the evidence and determine the truth
of the matter, but instead are to determine only whether there is a genuine dispute for trial
before the fact-finder.37 A fact is “material” if, under the substantive law, it is essential to
the proper disposition of the claim.38 A dispute is “genuine” if there is sufficient evidence
on each side so that a rational trier of fact could resolve the issue for either party.39
When, as here, the nonmoving party has the ultimate burden of persuasion at trial,
the moving party “has both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter
36 Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citations omitted).
37 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
38 Id. at 248.
39 Id.
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of law.”40 “The moving party may carry its initial burden either by producing affirmative
evidence negating an essential element of the nonmoving party’s claim, or by showing that
the nonmoving party does not have enough evidence to carry its burden of persuasion at
trial.”41 “Once the moving party points out the absence of evidence to create a ‘genuine
issue’ of a ‘material fact’ on which the non-moving party bears the burden of proof at trial,
. . . [t]he non-moving party must set forth specific facts showing there is a genuine issue
for trial.”42
Discussion
I. 	Plaintiff’s Sex Discrimination Claim
Title VII of the Civil Rights Act of 1964 prohibits sex discrimination in employment
decisions.43 Where a plaintiff relies on circumstantial evidence of discrimination, as is the
case here, the McDonnell Douglas Corp. v. Green framework governs.44
The burden starts with the plaintiff, who must present a prima 	facie case of
discrimination. 	A prima facie case of sex-based 	discrimination 	is established through
40 Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002), as amended
on denial of reh’g (Jan. 23, 2003) (citing Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210
F.3d 1099, 1102 (9th Cir. 2000)).
41 Id.
42 Otis v. Canadian Valley-Reeves Meat Co., 884 F. Supp. 446, 449–50 (W.D. Okla. 1994),
aff’d, 52 F.3d 338 (10th Cir. 1995) (citing Anderson, 477 U.S. at 248).
43 42 U.S.C. § 2000e-2(a)(1).
44 411 U.S. 792 (1973).
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evidence that: (1) the employee belongs to a protected class; (2) the employee suffered an
adverse employment 	action; and (3) the circumstances 	give 	rise to an inference of
discrimination.45 	An adverse action requires some harm respecting an identifiable term or
condition of employment.46 The action must have left her worse off, but it need not have
left her significantly so.47 The plaintiff must then come forward with evidence from which
a reasonable jury could infer that the adverse employment was taken because of plaintiff’s
sex.
If that hurdle is cleared, the burden shifts to the employer to provide a legitimate,
nondiscriminatory 	reason 	for the adverse employment 	action.48 	If such 	a reason 	is
provided, the burden shifts back to the plaintiff to demonstrate that the given reason is
pretextual49—that is, that the proffered reasons are so “incoherent, weak, inconsistent, or
contradictory that a rational factfinder could conclude the reasons were unworthy of
belief.”50
A. Plaintiff’s Prima Facie Case
45 Tabor v. Hilti, 703 F.3d 1206, 1216–17 (10th Cir. 2013) (internal quotations and
citations omitted).
46 Muldrow v. City of St. Louis, 601 U.S. 346, 354–55 (2024).
47 Id.
48 Tabor, 703 F.3d at 1216–17.
49 Id.
50 Stover v. Martinez, 382 F.3d 1064, 1076 (10th Cir. 2004).
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Defendant primarily argues that Plaintiff cannot show that she suffered an adverse
employment action under circumstances that could reasonably give rise to an inference of
discrimination.
Plaintiff alleges that she suffered an adverse employment action primarily in two
ways: (1) sales leads were diverted from her and she lost sales commissions when female
BDC employees funneled her sales leads to male salespeople in exchange for kickbacks
and that management failed to stop the BDC employees from doing so; and (2) she was
transferred to a less preferable job in the service department. Plaintiff also alleges that male
salespeople were generally treated better than her.
As for the transfer, Defendant argues that because Plaintiff was “offered”51 the
position and “voluntarily 	accepted” it,52 it cannot constitute an adverse employment
action.53 Plaintiff’s admission that she “voluntarily accepted” the transfer—which she has
not withdrawn—controls over her later attempt to qualify that admission in her deposition
testimony. The Court thus agrees with Defendant that the transfer was not an adverse
employment action.
The loss of sales leads and management’s differential correction by management
could, however, be adverse employment action. But the alleged kickback scheme, even if
51 Mount Aff. (Dkt. 22-3), at 2, ¶ 9.
52 Pl.’s Resps. to Reqs. for Admiss. (Dkt. 22-13), at 5, Req. No. 5.
53 Mot. for Partial Summ. J. (Dkt. 22), at 16.
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it existed, is not plausibly connected to Plaintiff’s sex. The BDC employees who moved
the leads were women. They also moved leads from male salespersons. Plaintiff agreed
that there was a financial motive. Title VII reaches conduct because of sex. It does not
reach a kickback scheme that hits whoever is not paying. Nor does a male-dominated sales
floor convert that scheme into sex discrimination once Plaintiff has admitted the financial
motivation and that male counterparts were also affected.
But Plaintiff also claims that when Plaintiff’s male coworkers complained about
leads being taken from them, the managers at Orr Nissan addressed the problem and
“nipped [it] in the bud,” but that when she made a similar complaint, the BDC employees
continued to divert her leads.54 	“An inference of discrimination 	can arise 	from an
employer's favoritism toward a similarly situated employee who is not part of the protected
class.”55 And employees are similarly situated “when they share a supervisor or decision-
maker, must follow the same standards, and engage in comparable conduct.”56
Plaintiff offers scant evidence to support her claim of differential correction. Only
her deposition testimony supports her claim that management stopped the practice for male
salespeople who complained. She has not identified a male salesperson, the complaint he
made, when, to whom, and what that supervisor did, set against a comparable complaint of
54 Pl.’s Dep. (Dkt. 22-2), at 170:10–171:13.
55 Ibrahim v. Alliance for Sustainable Energy, LLC, 994 F.3d 1193, 1196 (10th Cir. 2021)
(citation omitted).
56 Id. (citations omitted).
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hers that the same supervisor ignored. A general statement that men were treated better is
not enough to establish that a similarly-situated 	male counterpart was treated better by
management. Plaintiff has failed to produce evidence from which a reasonable jury could
find differential correction that was motivated by sex.
Plaintiff’s remaining claim that she lost sales leads in ways other than the kickback
scheme similarly 	suffers from a lack of competent supporting evidence. She has not
identified admissible evidence from which a reasonable jury could find that any diversion
outside the kickback scheme was because of her sex. And while she alleges that her
complaints about these “stolen” leads were ignored, she has not identified any similar
complaints made by male counterparts that were addressed differently by management.
So too for her claims that she was occasionally assigned tasks not assigned to male
salespeople and that she wasn’t allowed on the sales floor until she had passed her Nissan
salesperson exam. Plaintiff has not shown that any of those things were anything more than
short, ordinary alteration of duties or that they left her worse off as to pay, schedule, status,
prestige, or concrete job opportunities. Not every unwanted assignment affects a term or
condition of employment, and while Plaintiff need not show that she was significantly
harmed by these things, she must still come forward with evidence of some harm, and here,
she has not.
A. Defendant’s Non-Discriminatory Reasons
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Alternatively, 	even 	if 	Plaintiff 	had 	established 	a 	prima 	facie 	case 	of 	sex
discrimination, 	Defendant has offered legitimate, 	non-discriminatory 	reasons 	for any
adverse employment actions. Defendant reiterates that the kickback scheme was financially
motivated 	and the “stolen” 	and diverted 	leads were just 	the product of aggressive
salespeople seeking to increase their sales, and that, says Defendant, has nothing to do with
Plaintiff’s sex (particularly when male salespeople also had their leads diverted). As to the
transfer, Defendant offers that Plaintiff was asked to transfer to the new position because
she had good customer service skills that made her a good fit for the position.
B. Pretext
Plaintiff has also not offered evidence to support a jury finding that Defendant’s
proffered non-discriminatory reasons are pretextual. Plaintiff argues pretext only as to the
transfer. Assuming the transfer was adverse, Defendant’s explanation—that it offered a
customer-facing role because of her customer-service skills—is legitimate. A four-month
gap after the June 24, 2023 report does not make that explanation so incoherent, weak,
inconsistent, or contradictory that a rational factfinder could find it unworthy of belief.57
II. 	Plaintiff’s Retaliation Claim
57 Young v. Dillon Cos., Inc., 468 F.3d 1243, 1250 (10th Cir. 2006).
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A plaintiff bringing a Title VII retaliation claim must show that “(1) [s]he engaged
in protected activity; (2) [s]he suffered an adverse employment action; and (3) there is a
causal connection between [her] protected activity and the adverse employment action.”58
Plaintiff’s 	retaliation 	claim, 	as 	briefed, 	rests 	on 	the 	transfer 	to 	the 	service
department. She admitted that she voluntarily accepted that transfer.59 That admission is
conclusively established unless withdrawn,60 and Plaintiff has not moved to withdraw it.
Later testimony that her supervisor asked more than once, that she felt obligated, and that
she nevertheless “made the decision on [her] own,”61 does not withdraw the admission,
and importantly, does not squarely contradict it. She also acknowledged that her supervisor
never threatened adverse employment action if she refused the transfer.
A 	transfer 	Plaintiff 	conclusively 	admitted she 	accepted 	voluntarily 	is 	not 	a
materially adverse action. An action is materially adverse if it “well might have dissuaded
a reasonable worker from making or supporting a charge of discrimination.”62 A move the
employee accepted of her own accord is not such an action. Even if the voluntarily-
58 Davis v. Unified Sch. Dist., 750 F.3d 1168, 1170 (10th Cir. 2014) (citations omitted).
59 Pl.’s Resps. to Reqs. for Admiss. (Dkt. 22-13), at 5, Req. No. 5.
60 Fed. R. Civ. P. 36(b).
61 Pl.’s Resps. to Interrogs. (Dkt. 22-7), at 22, Interrog. No. 16.
62 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citation and
internal quotation marks omitted).
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accepted transfer were an adverse employment action, Plaintiff has not produced evidence
from which a reasonable jury could infer that the transfer occurred because of her sex.63
III. 	Plaintiff’s FMLA Interference Claim
To prevail on an interference claim, Plaintiff must show “(1) that she was entitled
to FMLA leave, (2) that some adverse action by the employer interfered with her right to
take FMLA leave, and (3) that the employer’s 	action was related to the exercise or
attempted exercise of her FMLA rights.”64 She argues that RSV was a serious health
condition and that Defendant interfered by failing to tell her she was eligible for leave.65
Her evidence is a December 30, 2022 doctor’s note excusing her “until signs and symptoms
are resolved and she is feeling better.”66
But a serious health condition requires inpatient care or continuing treatment.67
Continuing treatment by incapacity requires more than three consecutive, full calendar
days and either two in-person treatments within 30 days or one treatment that results in a
regimen of continuing treatment.68 Plaintiff has shown neither. Waiting to feel better is not,
63 Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).
64 Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007)
(alterations adopted) (citation omitted).
65 Plaintiff’s Complaint originally asserted that she qualified for sick leave when she sought
breast-augmentation surgery in December 2022, but Plaintiff now relies solely on her RSV
illness as a basis for her FMLA claim.
66 Doctor’s Note (Dkt. 33-11).
67 29 U.S.C. § 2611(11); 29 C.F.R. § 825.113(a).
68 29 C.F.R. § 825.115(a).
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by itself, a regimen of continuing treatment.69 She therefore was not entitled to FMLA
leave, and a failure to give an eligibility notice did not interfere with a right she had.
In the alternative, Plaintiff has shown no prejudice. She does not contend the
absence was denied, that she was disciplined, that she lost pay, or that she was not restored
to her job.70
Conclusion
Accordingly, the Motion for Partial Summary Judgment (Dkt. 22) is GRANTED.
Plaintiff’s Title VII sexual-harassment 	claim, which was not a subject of the Motion,
remains pending.
IT IS SO ORDERED this 16th day of October 2026.
69 29 C.F.R. § 825.113(c).
70 Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002).
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