Dennis Bateman v. Nexstar Media Group, Inc.

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
DENNIS BATEMAN,
Plaintiff - Appellant,
v.
NEXSTAR MEDIA GROUP, INC.,
Defendant - Appellee.
No. 20-4114
(D.C. No. 2:18-CV-00815-DBB)
(D. Utah)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before McHUGH, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Dennis Bateman, pro se,1 appeals the district court’s order granting Nexstar
Media Group, Inc.’s motion for summary judgment on his claims for discriminatory
discharge and retaliation under the Americans with Disabilities Act (ADA).
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
* After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
1 Bateman was represented by counsel in the district court.
FILED
United States Court of Appeals
Tenth Circuit
October 4, 2021
Christopher M. Wolpert
Clerk of Court
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I. BACKGROUND
Nexstar owns and operates ABC 4 Utah, a local television news station in
Salt Lake City, Utah. Bateman, who has several disabilities, was hired by the station
as a photographer/editor in December 2014. Specifically, Bateman “is a left-leg,
below-knee amputee; has post-traumatic stress disorder, which causes him insomnia;
and has a cholesteatoma of the left ear, which required surgery resulting in hearing
loss and a speech impediment.” R., Vol. 1 at 696 (footnotes omitted).
Not long after Bateman was hired, two photographers quit their jobs and the
chief photographer, Todd Petersen, needed to adjust the remaining staff’s work
schedules. “Bateman requested that his schedule not include any ‘turnarounds’ (late
shift one day and early shift the following day), and that he have two consecutive
days off.” Id. at 697. In February or March 2015, Bateman received a schedule that
“gave him two consecutive days off, including Sundays based on [Petersen’s]
understanding that Bateman enjoyed watching NASCAR, but had him working one
turnaround shift.” Id. (footnote omitted).
Several months later, in July 2015, Bateman complained to human resources
that he had been denied a reasonable accommodation for his disabilities because the
new schedule included a turnaround shift. His complaint was relayed to Petersen,
who met with Bateman and memorialized their meeting in a letter dated August 4.
The letter “addressed Bateman’s concerns about his schedule, including explaining
why there was a need for Bateman to work a turnaround shift.” Id. Petersen went on
to note the “positive efforts Bateman had made in the news department and that he
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was pleased with many aspects of Bateman’s work.” Id. (brackets and internal
quotation marks omitted).
In mid-November 2015, Petersen gave Bateman “a disciplinary write-up,
based on [his] understanding that Bateman had complained after being assigned an
editing task, slammed the door in the face of the Assistant News Director and
Managing Editor, and left work with only half of the task completed.” Id. at 698.
Bateman denied slamming the door and maintained there was a problem with the
video tape that prevented him from completing the assignment on time.
“Also in November 2015, Bateman requested a personal day to spend time
with his mother.” Id. Petersen told him that he would need to find coverage for his
shift to take a personal day. But Bateman did not find coverage; instead, he “called
in sick on the requested day, citing trouble with his prosthesis.” Id. Petersen issued
Bateman a disciplinary write-up for “his improper use of a sick day in violation of
Nexstar’s attendance policy.” Id. Again, Bateman disputed Petersen’s
characterization of what occurred and maintained that “his sick day was for
legitimate medical reasons.” Id. (internal quotation marks omitted).
Bateman’s December 2015 “employee evaluation contain[ed] positive and
negative comments about his performance.” Id. at 699. “For example, [it] noted that
[he] was a hard worker most of the time and had a good knowledge of his job, [but]
had challenges effectively communicating his needs and frustrations with some
co-workers and managers.” Id. (footnote and internal quotation mark omitted).
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“In January 2016, after the station hired an additional photographer, Bateman
received notice that he would be working a new schedule that met all of his
requests—one with no turnarounds and two consecutive days (Saturday and Sunday)
off.” Id. And in April 2016, he received a favorable employee evaluation.
Bateman’s work remained on a positive trajectory until “August 2016, [when]
a third-party complained about [his] unprofessional conduct as a photographer.” Id.
According to Bateman, his conduct “did not violate company policy, but . . . in order
to avoid any appearance of unprofessionalism, he apologized to the complainant.”
Id. at 699-700 (internal quotation marks omitted).
In March 2017, Bateman received a disciplinary write-up and one-day
suspension because he damaged some equipment and lost a camera. Bateman did not
dispute that he lost the camera but asserted that a supervisor was to blame for the
equipment damage. In response to Bateman’s objection, the news director sent an
email explaining the reasons for the disciplinary action but also included several
positive comments about his job performance.
Bateman’s April 2017 performance evaluation contained mostly positive
comments, “but also some “complaints about cigarette smell, concerns with damaged
and lost property, and the need to maintain a positive attitude.” Id. at 701.
“In May 2017, [a different] third-party complained about Bateman, this time
alleging that he appeared to be under the influence of alcohol while working an
event. The employee counseling form noted that two complainants reported that
Bateman smelled of alcohol, slurred his words, and stumbled.” Id. (footnote
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omitted). “It also stated that a station employee reported that Bateman had missed
another assignment because he was hungover,” and “further noted that Bateman
smoked regularly and often smelled of cigarette smoke.” Id. (footnote, brackets, and
internal quotation marks omitted).
Bateman was placed on a 30-day probation and given goals to “improve his
personal appearance and hygiene—dress professionally for his assignments in clean
appearing and smelling clothing and . . . [to] perform at an exemplary standard
without complaints from colleagues, subjects of his assignments or management.”
Id. at 701-02 (brackets and internal quotation marks omitted). A week after he was
placed on probation, Bateman “gave notice that he would resign [in two weeks].
Bateman completed his final two weeks—half of the probation period—without
incident.” Id. at 702 (footnote omitted).
“On June 1, 2017, less than two weeks after he resigned, Bateman asked for
his job back.” Id. In an email to the news director, he explained that the decision to
resign had been difficult and stressed how grateful he would be to return to the
station. The news director told Bateman that his former position had been filled and
included a link to a job posting for an available part-time position. But Bateman did
not apply for that position; instead, in October 2017, Bateman filed a charge of
discrimination with the Equal Employment Opportunity Commission and the Utah
Antidiscrimination and Labor Division. After receiving notice of his right to sue, he
filed suit under the ADA for discriminatory discharge and retaliation. Following
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discovery, Nexstar moved for summary judgment. The district court granted the
motion. Bateman appeals.
II. STANDARD OF REVIEW
“The court shall 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.” Fed. R. Civ. P. 56(a). “We review the district court’s grant of
summary judgment de novo, reviewing the evidence in the light most favorable to the
nonmoving party.” Kilcrease v. Domenico Transp. Co., 828 F.3d 1214, 1218
(10th Cir. 2016) (brackets and internal quotation marks omitted).
III. ANALYSIS
A. Discriminatory Discharge
The ADA provides that “[n]o covered entity shall discriminate against a
qualified individual on the basis of disability in regard to . . . the . . . discharge of
employees.” 42 U.S.C. § 12112(a). “ADA discrimination claims are generally
subject to the [three-step] McDonnell Douglas burden-shifting framework adapted
from Title VII discrimination caselaw.” Kilcrease, 828 F.3d at 1220.
At step one, “a plaintiff carries the burden of raising a genuine issue of
material fact on each element of his prima facie case.” Id. (internal quotation marks
omitted). To establish a prima facie case of discriminatory discharge under the ADA,
“a plaintiff must demonstrate: (1) that [he] is . . . disabled . . . within the meaning of
the ADA; (2) that [he] is . . . able to perform the essential functions of the job, with
or without reasonable accommodation; and (3) that the employer terminated [his]
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employment under circumstances which give rise to an inference that the termination
was based on [his] disability.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.
1997) (citations omitted). “In order to establish [the third] element, the plaintiff must
present some affirmative evidence that disability was a determining factor in the
employer’s decision. This burden is not onerous, but it is also not empty or
perfunctory.” Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1259 (10th Cir.
2001) (citation and internal quotation marks omitted).
“Even if an employee resigns, the plaintiff may still satisfy the [termination]
requirement by demonstrating that he was constructively discharged.” Fischer v.
Forestwood Co., 525 F.3d 972, 980 (10th Cir. 2008). “A claim of constructive
discharge has two basic elements: First that the plaintiff was discriminated against
by his employer to the point where a reasonable person in his position would have
felt compelled to resign. Second, that he actually resigned.” Rivero v. Bd. of Regents
of Univ. of N.M., 950 F.3d 754, 761 (10th Cir. 2020) (ellipses, brackets, and internal
quotation marks omitted). As to the first element, “[e]ssentially, a plaintiff must
show that [he] had no other choice but to quit. The conditions of employment must
be objectively intolerable.” Id. (brackets and internal quotation marks omitted). But
“[i]f an employee resigns of [his] own free will, even as a result of the employer’s
actions, that employee will not be held to have been constructively discharged.” Id.
(internal quotation marks omitted).
At step two, “[i]f plaintiff establishes a prima facie case, the burden shifts to
the defendant to offer a legitimate nondiscriminatory reason for its employment
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decision.” Kilcrease, 828 F.3d at 1220 (internal quotation marks omitted). And at
step three, “[i]f defendant articulates a nondiscriminatory reason [for its actions], the
burden shifts back to plaintiff to show a genuine issue of material fact as to whether
the defendant’s reason for the adverse employment action is pretextual.” Id. (internal
quotation marks omitted).
Nexstar conceded that Bateman satisfied the first two elements of a prima facie
case—he was disabled and qualified to do his job. As to the third element, the
district court found that Bateman failed to present any evidence that his disability
was a factor in any of the actions taken by Nexstar—in other words, he failed to
establish an inference of discrimination. The court further found that even if
Bateman established a prima facie case, Nexstar articulated nondiscriminatory
reasons for each of its disciplinary actions at step two of the McDonnell Douglas
analysis, and Bateman did not prove pretext at step three. But the court also
articulated another reason why Bateman could not survive summary judgment which
we find dispositive—he was not constructively discharged.
The record establishes, as the district court found, that no reasonable employee
in Bateman’s shoes would have felt compelled to resign; instead, Bateman freely
decided to quit his job two weeks into a 30-day probationary period. As explained
previously, the district court found that Bateman was provided with two specific
goals for his probationary period, which “indicates that there was indeed some way
Bateman could successfully complete probation, meaning that he had an option other
than to resign.” R., Vol. 1 at 711.
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We further agree that Bateman failed to present any other evidence showing
that his working conditions were so intolerable that a reasonable person in his
position would have felt compelled to resign. Any such argument is negated by the
fact that Bateman asked for his job back. As the district court explained, “[h]ad the
alleged discrimination been so egregious that a reasonable person would have felt
compelled to resign, it does not follow that a reasonable person would then, almost
immediately, ask for that job back.” Id. Summary judgment was therefore proper on
Bateman’s claim for discriminatory discharge.
B. Retaliation
When a plaintiff “attempts to prove his retaliation claim using circumstantial
evidence, the analytical framework pronounced in McDonnell Douglas . . . [also]
guides our review.” Foster v. Mountain Coal Co., 830 F.3d 1178, 1186 (10th Cir.
2016) (brackets and internal quotation marks omitted). “Under this framework, once
the plaintiff establishes a prima facie case of retaliation, the employer has the burden
of showing it had a legitimate, nondiscriminatory reason for the adverse action.” Id.
(internal quotation marks omitted). “To establish a prima facie case of ADA
retaliation, a plaintiff must prove that (1) he engaged in a protected activity; (2) he
was subjected to an adverse employment action subsequent to or contemporaneous
with the protected activity; and (3) there was a causal connection between the
protected activity and the adverse employment action.” Id. at 1186-87 (brackets and
internal quotation marks omitted). “If the employer can do so, the burden of
production shifts back to the plaintiff to prove pretext, which requires a showing that
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the proffered nondiscriminatory reason is unworthy of belief.” Id. at 1186 (brackets
and internal quotation marks omitted).
To support his retaliation claim, Bateman maintains that he engaged in
protected activity when he complained in July 2015 to Nexstar’s human resources
department about his work schedule. And he contends that the disciplinary actions
taken by Nexstar in November 2015, March 2017, and May 2017 were adverse
employment actions that were causally connected to his July 2015 complaint. For
purposes of summary judgment, Nexstar did not dispute that Bateman engaged in
protected activity when he raised an objection to his work schedule in July 2015.
The district court found that Bateman could not assert a retaliation claim based
on the November 2015 disciplinary actions because he failed to timely file an
administrative charge. We agree. To maintain a retaliation under the ADA, a
plaintiff “must have filed an administrative charge within 300 days of the challenged
employment action and have filed suit in federal court within ninety days of receiving
the agency’s right-to-sue letter.” Proctor v. United Parcel Serv., 502 F.3d 1200,
1206 (10th Cir. 2007) (emphasis added). This means that Bateman was required to
file his administrative claim regarding the November 2015 employment actions no
later than mid-September 2016. He failed to do so; instead, he waited until more
than a year later, in mid-October 2017, to file an administrative charge.
But the district court found that Bateman could maintain a retaliation claim
based on the March 2017 and May 2017 disciplinary actions, which it determined
were adverse employment actions, because he filed an administrative claim within
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300 days. We do not decide whether these were adverse employment actions because
we agree with the court’s further finding that Bateman’s retaliation claim failed for
the lack of a causal connection.
“A retaliatory motive may be inferred when an adverse action closely follows
protected activity. However, unless the termination is very closely connected in time
to the protected activity, the plaintiff must rely on additional evidence beyond
temporal proximity to establish causation.” Piercy v. Maketa, 480 F.3d 1192, 1198
(10th Cir. 2007) (internal quotation marks omitted). Specifically, a plaintiff is not
entitled to such an inference based upon “an adverse employment action that
happened more than three months after the protected activity.” Id. Although “the
passage of time does not necessarily bar a plaintiff’s retaliation claim,” for the claim
to survive in the absence of temporal proximity, a plaintiff must present “additional
evidence [that] establishes the retaliatory motive.” Id. at 1198-99. But Bateman
failed to come forward with any additional evidence.
First, discounting the November 2015 disciplinary actions as time-barred, the
gap between the July 2015 protected activity and the suspension and probation in
2017 is too large to create a presumption of causation. Second, even if the November
2015 disciplinary write-ups are considered, Bateman received them more than three
months after the July 2015 protected activity, which also defeats any presumption.
Last, the district court found that Bateman failed to come forward with additional
evidence to establish a causal connection. To the contrary, the court found that
“there were several intervening positive events such as performance reviews with
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positive feedback, a desired schedule change, and other positive feedback from
Bateman’s supervisors that undercut the claim of retaliation.” R., Vol. 1 at 716.
Therefore, summary judgment was proper on Bateman’s retaliation claim.
IV. CONCLUSION
The judgment of the district court is affirmed. We deny Bateman’s motion to
proceed without prepayments of costs and fees.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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