Bertsch v. Overstock.com
Bertsch v. Overstock.com
Opinion of the Court
FINDINGS OF FACT & CONCLUSIONS OF LAW
Elizabeth A. Bertsch
FINDINGS OF FACT
Overstock, an Internet retailer, hired Ms. Bertsch as an at-will, entry-level customer service representative in February 2001. During the course of her Overstock employment, Ms. Bertsch advanced to the positions of creative lead and inventory control lead. In 2002, Ms. Bertsch transferred to the Books, Movies, and Video Department (Media Department). Ms. Bertsch worked with the Media Department until her termination in May 2004.
A. Overview of the Media Department
The Media Department was composed of a small group of buyers, administrative support, and supervisors. The buyers included Tom Jourdane, Mark Allgood, Andy Fletcher, and Dustin Latimer. Ms. Bertsch provided administrative support to the buyers. Mike Hoy and Jenny Clark later joined the Media Department as administrative support.
The physical layout of the Media Department changed over time. During the relevant time period, the members of the Media Department worked in a cubicle environment. These cubicles were arranged in close proximity to one another.
At different points in time, Ms. Simon and Mr. Popelka worked in offices separate from the Media Department cubicles.
B. Ms. Bertsch’s Job Responsibilities and Annual Reviews
Ms. Bertsch’s job responsibilities and her role within the Media Department are central to this case. Ms. Bertsch described her duties as providing support for Mr. Jourdane, Mr. Fletcher, Mr. Latimer, and Mr. Allgood. Ms. Bertsch was responsible for facilitating purchase orders and placing inventory on the company’s website. Throughout trial, it was evident to the court that Ms. Bertsch’s position required her to work closely and cooperatively with the buyers.
As part of her regular job responsibilities, Ms. Bertsch worked part-time at Overstock’s warehouse. She visited the warehouse to write copy and image products that were absent from the company’s database. This occurred approximately one to two times a month throughout most of the year. But during the months leading up to Overstock’s holiday season, Ms. Bertsch would visit the warehouse one to two times per week. Ms. Bertsch had an office space reserved at the warehouse. She testified that she did not enjoy working at the location because of the noise and lack of temperature control.
Ms. Bertsch received two formal reviews in the Media Department. In her 2003 Annual Review, Ms. Bertsch’s supervisor informed her that “she needs to work on getting along with her fellow employees [and that] she needs to continue to develop her relationship skills.”
In her 2004 Annual Review, which occurred on January 19, 2004, Mr. Popelka advised Ms. Bertsch that she “needs to work on the team dynamic.”
The parties contest the weight that should be given to the ratings Ms. Bertsch received during the 2004 Annual Review. Ms. Bertsch correctly points out that Mr. Popelka rated her performance as “Exceeds Expectations” in the areas of Job Knowledge, Communication Skills, and Dependability, and “Outstanding” in the areas of Work Quality.
C. Mr. Latimer’s Inappropriate Behavior
By all accounts, Mr. Latimer, the Media Department’s video buyer, engaged in several instances of shameful and inappropriate behavior while an employee of Overstock. Erika Leifson, a former coworker and friend of Ms. Bertsch, complained to Mr. Schwegman and Mr. Popelka that Mr. Latimer was watching uncensored videos with naked men and women at his workstation. At another point in time, Mr. La-timer hung a picture of a seminude woman in his cubicle. After receiving multiple complaints, Mr. Latimer’s supervisors instructed Mr. Latimer to stop viewing uncensored videos at work and ordered him to remove the offensive picture from his cubicle.
Mr. Latimer also appears to have made several unsavory comments. Ms. Barney testified that Mr. Latimer “used the ‘F’ word quite frequently, and I did hear him say the ‘C’ word on occasion.”
Ms. Bertsch- testified that she complained to Mr. Popelka about Mr. Latimer watching uncensored videos, after which Mr. Popelka gave Mr. Latimer a portable DVD player. Ms. Bertsch also complained tó Mr. Schwegman about the offensive cu
Ms. Bertsch also briefly spoke with Mr. Popelka in the hallway at work about Mr. Latimer’s behavior towards her prior to her February 2004 meeting with Human Resources.
The record amply reflects that Mr. La-timer made Ms. Bertsch feel unwanted and unequal in the workplace after she joined the Media Department. And it is equally apparent that neither Mr. Latimer nor Ms. Bertsch enjoyed the other’s company. Unfortunately, the symbiotic nature of their job responsibilities and the physical layout of the workspace only served to amplify the tension and animosity, which boiled over in February 2004.
D. Vendor Email Incident
On February 17, 2004, Eric Johnson, an important vendor, requested a purchase order number from Mr. Latimer. Mr. La-timer, in turn, sent an email requesting the number from Ms. Bertsch, who responded that the purchase order would be sent when it had been completed. Moments later, Mr. Latimer responded: “That’s great, however, will you email Eric the po number, since you know the po number well in advance of the po actually being completed? That way, Eric can start getting the order prepared on his side.”
The email exchange touched off a firestorm. Ms. Berstch, upset and humiliated by Mr. Latimer’s inclusion of the vendor on the email, sent a response to Mr. La-timer, Mr. Popelka, and Ms. Simon within fifteen minutes. Ms. Bertsch indicated that (a) she had assumed most of a former coworker’s responsibilities, (b) Mr. Latimer should give vendors a realistic estimate of when to expect purchase orders, (c) she did not know the purchase order number in advance of the order itself, (d) she attempted to divide her time equally between the buyers and her own responsibilities, and (e) she found Mr. La-timer’s response offensive.
Mr. Popelka and Ms. Simon received the vendor email exchange. Ms. Simon was concerned about the incident for several reasons. First, Ms. Simon had been cultivating a business relationship with the vendor in an attempt to expand into the video market. Second, Ms. Simon had a personal relationship with Mr. Johnson, who was “pushing the envelope” with his employer on Overstock’s behalf.
E. Investigation
The vendor email incident eventually led to corrective action for both Ms. Bertsch and Mr. Latimer. At trial, however, the parties disputed whether Overstock’s actions were triggered by the vendor email incident, or Ms. Bertsch’s complaint of harassment or sexual discrimination.
Ms. Bertsch testified that she visited Mr. Popelka’s office on February 18, 2004, the same day of the vendor email incident. Ms. Bertsch testified that she informed Mr. Popelka and Ms. Simon that she had “some concerns of harassment or sexual discrimination, something along those line” and asked for guidance.
In contrast, Overstock contends that following the vendor email exchange management instructed Karrie Howard, Overstock’s Director of Human Resource Department, to investigate the vendor email incident, identify the source of the tension between Ms. Bertsch and Mr. Latimer, and initiate corrective action against Ms. Bertsch and Mr. Latimer. After consideration of the testimony and evidence, the court finds Overstock’s interpretation to be more accurate, at least in part because Ms. Howard provided credible corrobora
After being contacted by management, Ms. Howard began her investigation by focusing on the contentious relationships within the Media Department. As part of this investigation, Ms. Howard interviewed Ms. Bertsch, Mr. Latimer, Ms. Popelka, and Mr. Allgood. Lacking an independent recollection of the interviews that occurred years earlier, Ms. Howard relied heavily on her notes at trial.
Ms. Howard met with Ms. Bertsch on February 20, 2004. During the course of the interview, Ms. Bertsch raised several concerns relating to Mr. Latimer’s behavior: (a) he insulted her in front of others; (b) he talked about her behind her back; (c) he referred to women as possessions; (d) he never said a kind word to her; (e) he made her feel like a servant, rather than a coworker; (f) he failed to look at her while speaking to her; (g) he displayed an explicit picture in his work cubicle; (h) he stated that this picture would not have been removed “if we didn’t have women on our team;” and (i) he stated “that’s the way it should be” in response to another coworker’s comments about engaging in a physical relationship with an ex-wife.
Ms. Howard also interviewed Mr. La-timer, who “expressed frustration and dissatisfaction about working with Ms. Bertsch.”
Ms. Howard also interviewed Mr. All-good and Mr. Popelka. According to her interview notes, Mr. Allgood raised concerns about his fear of working with Ms. Bertsch “on the wrong day” and her negative attitude.
Ms. Howard’s general practice at the time was to conduct an investigation, summarize the issues presented during the investigation, and meet with the manager .of the employee at issue to offer her suggestion for an appropriate course of action. Ms. Howard would then often work with the manager to put together and draft a written warning.
At the- same time, however, neither Mr. Popelka nor Ms. Simon assisted with the minutiae of the investigation or attended Ms. Howard’s private interviews with either Ms. Bertsch or Mr. Latimer. And Ms. Howard did not share the details of Ms. Bertsch’s interview with Ms. Simon or Mr. Popelka. The court finds that Ms. Simon credibly testified that she did not learn of Ms. Bertsch’s complaints until after her-termination.
F. Warehouse “Threat”
Ms. Bertsch met with Mr. Popelka on' February 25, 2004. Mr. Popelka described it as a cooperative meeting, in which he discussed the possibility of relocating Ms. Bertsch to her warehouse office in order to physically separate her from the team so that “she could focus better and be more productive.”
The next morning, Ms. Bertsch sent an email apology to Mr. Popelka and Ms. Simon. Ms. Bertsch acknowledged that she was part of the problem, requested an opportunity to prove that she could change, and stated that she could improve her “attitude and become more ‘user friendly’ to all of [her] colleagues.”
Ms. Bertsch sent similar emails to coworkers in the Media Department. In an email to Mr. Latimer, Ms. Bertsch referenced the problems in their work relationship and wrote, “I never intended to make you feel I was unapproachable or that your projects were less of a priority.... The last thing I want to happen is to make my team feel they can’t come to me for help.”
At trial, Ms. Bertsch testified that she did not believe that she had a behavior problem or that she had caused issues in the Media Department.
Because Ms. Bertsch had apologized, taken accountability, and promised to improve, Mr. Popelka and Ms. Simon ultimately decided to not relocate Ms. Bertsch to the warehouse.
G. Corrective Action Plan
Consistent with the scope and focus of the Human Resources investigation, Overstock pursued corrective action against both Mr. Latimer and Ms. Bertsch. Ms. Howard testified that Ms. Bertsch was not given the corrective action plan because of her complaints about Mr. Latimer’s behavior, but instead because Ms. Bertsch “needed to make some improvement in her workplace behavior.”
Mr. Latimer received a corrective action plan on February 24, 2004.
Ms. Bertsch received her written corrective action plan during a meeting with Mr. Popelka on February 26, 2004. Similar to Mr. Latimer’s corrective action plan, Ms. Bertsch’s notice articulated the problem as “complaints that [Ms. Bertsch] contributes to a hostile work environment [including] abusive behavior by way of manner and sarcasm. [Ms. Bertsch] has shown a pattern of not supporting coworkers [sic] business needs and she needs to prioritize her tasks more effectively.”
Ms. Howard testified that when she used the term “hostile work environment” in the corrective action notices she meant “uncomfortable, contentious.”
H. Warehouse Incident
After receiving the corrective action plan, Ms. Bertsch returned to her normal duties with one exception. In an effort to alleviate her workload, Overstock assigned other employees to assist Ms. Bertsch. Ms. Bertsch was given the responsibility of cross-training these employees. As already discussed, both prior to and after the vendor email incident, Ms. Bertsch continued to split her time between the corporate office and warehouse location.
During the next few months, Ms. Bertsch began to exhibit some of the same behavioral and team dynamic issues that had given rise to the corrective action plan and criticism during her 2003 and 2004 Annual Reviews. These issues came to a head on May 12, 2004, when the warehouse manager, Dan McKnight, forwarded an email chain to Mr. Popelka.
For Mr. Popelka, the warehouse incident raised concerns because it reflected the same issues that previously had been
I. Termination
After speaking with Mr. Popelka, Ms. Simon decided to terminate Ms. Bertsch’s employment. Ms. Simon testified that she wanted Ms. Bertsch to succeed at Overstock, but recognized the tension between Ms. Bertsch and her coworkers. Ms. Simon explained that “when you have hundreds of employees and you find yourself spending a percentage of time with the same ones over the same issues, that there just becomes a point for both parties that you should simply part ways, and that’s where I was in regards to [Ms. Bertsch].”
Mr. Popelka identified several reasons for Ms. Bertsch’s termination. He testified that she was terminated because she caused disharmony at the warehouse.
Ms. Bertsch’s formal disciplinary notice identified several reasons for her termination.
Attached to the termination notice was a list of additional reasons for the termi
At trial, Ms. Bertsch testified that she was told that her “behavior hadn’t improved, and my work wasn’t being completed in ... a manner beneficial to the company, and that they were letting me go.”
The parties dispute who had the ultimate authority to terminate Ms. Bertsch.
The court is mindful of conflicting evidence concerning the impetus • of Ms. Bertsch’s termination and the inevitable deterioration of memories that is an unwanted product of protracted litigation. Nevertheless, after careful consideration of the testimony of the witnesses and evidence presented at trial, the court finds that Ms. Simon and Mr. Popelka did not terminate Ms. Bertsch because of any pri- or complaints about Mr. Latimer or the work environment,
J. Alleged Disparate Enforcement
In her papers, Ms. Bertsch argues that Overstock’s treatment of Mr. Latimer demonstrates pretext. While the court questions the relevancy of Mr. Latimer’s treatment
First, Mr. Latimer received a verbal warning for failing to pull his weight and verbally abusing coworkers in May 2003.
CONCLUSIONS OF LAW
At trial, Ms. Bertsch offered no direct evidence in support of her retaliation claim. Based on the stipulation of the parties, the court will apply the McDonnell Douglas burden-shifting framework.
The Supreme Court has cautioned that while the “intermediate evidentiary burdens shift back and forth under this framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ”
I. Prima Facie Case of Retaliation
“A prima facie retaliation case is made if the plaintiff shows that she engaged in protected opposition to discrimination, and, as a result, suffered materially adverse action, i.e., action sufficient to ‘dissuade’ a reasonable worker from making her complaint.”
A. Protected Opposition
To engage in protected opposition, a plaintiff must possess a reasonable, good-faith belief that the conduct at issue violated Title VII.
At the same time, however, the Tenth Circuit has held that offhand comments and isolated incidents do not ordinarily constitute a Title VII violation.
Here, the court finds that Ms. Bertsch engaged in protected activity when she reported Mr. Latimer’s inappropriate behavior during a meeting with Ms. Howard in February 2004. Ms. Bertsch harbored a subjective belief that Mr. La-timer’s comments constituted sexual harassment, and that his behavior towards her and female coworkers created a hostile work environment. Looking at the totality of the circumstances, the court finds that a reasonable person would have believed that Mr. Latimer’s conduct, as described above, was sufficiently severe or pervasive as to create an abusive working environment.
B. Materially Adverse Action
An action is materially adverse if that action is “harmful to the point that [it] might well dissuade a reasonable worker from making or supporting a charge of discrimination.”
Ms. Bertsch argues that three incidents rise to the ltevel of materially adverse actions: (1) the threat on February 25, 2004 to move Ms. Bertsch to the warehouse; (2) the corrective action plan received by Ms. Bertsch on February 26, 2004; and (3) her termination on May 17, 2004.
The court concludes that each of these events could dissuade a reasonable worker from making a charge of discrimination. Although the court disagrees in part with Mr. Bertsch’s characterization of her discussions with Mr. Popelka about the possibility of relocating Ms. Bertsch to the warehouse,
C. Causal Connection
In the Tenth Circuit, a party may demonstrate a causal connection by demonstrating a close temporal connection between the protected activity and the adverse action.
In this case, Ms. Bertsch satisfied her burden of presenting prima facie evidence of a causal connection between her complaints in February 2004, her supervisors’ suggestion that she relocate to the warehouse on a full-time basis, and the corrective action plan. Because all of these events occurred within a matter of a couple of weeks, there is sufficient evidence of a causal connection for the court to move forward to the second phase of the McDonnell Douglas test without considering other factors that may weigh in favor of or against causation.
At the same time, the court concludes that Ms. Bertsch failed to demonstrate a causal connection between her termination and the protected activity for four reasons. First, nearly three months separate her protected activity and the
II. Legitimate Non-DisCriminatory Reasons for Overstock’s Conduct
Because Ms. Bertsch presented prima facie evidence of retaliation, the burden shifts to Overstock to demonstrate “a legitimate, non-discriminatory reason for the adverse action.”
Overstock’s decision to discuss the possibility of relocating Ms. Bertsch to the warehouse was supported by a legitimate, non-discriminatory reason. Ms. Howard’s investigation revealed friction between Ms. Bertsch and her coworkers. Ms. Bertsch already maintained an office at the warehouse and spent time there. When discussing the possibility of a full-time relocation, Ms. Bertsch’s supervisors hoped to alleviate the tensions arising out of the
Similarly, legitimate, non-discriminatory reasons drove Overstock’s decision to issue a corrective action plan to Ms. Bertsch. Because of the vendor email incident, the subsequent investigation, and particularly in light of her previous annual reviews, Ms. Bertsch’s supervisors possessed a credible belief that she needed to improve her relationship with other members of the team, treat members of the team equally, more fairly prioritize her work, and focus on improving the consistency of her interactions. In this respect, Ms. Bertsch’s conduct towards coworkers, her failure to prioritize work, and her participation in the vendor email incident provided legitimate, non-discriminatory bases for Overstock to issue a written warning in the form of a corrective action plan.
Finally, while the court has found that Ms. Bertsch failed to establish a pri-ma facie case for her termination, the court will identify Overstock’s legitimate, non-discriminatory reasons for Ms. Bertsch’s discharge insofar as it is relevant to the pretext analysis. Overstock identified several legitimate, non-discriminatory bases for Ms. Bertsch’s termination, in-eluding her failure to improve working within the team dynamic, her failure to complete cross-training, her self-imposed isolation from coworkers, her decision to play videogames at work, and her contribution to workplace disharmony. While each of these factored into Overstock’s decision to terminate Ms. Bertsch’s employment, the reemergence of old issues in a different environment with a new set of coworkers produced legitimate cause for concern. For all of these reasons, Overstock had legitimate bases for concluding that further corrective action would no longer be sufficient to cure Ms. Bertsch’s conduct or her effect on the work environment.
Because Overstock provided a legitimate, non-discriminatory justification for each of the three challenged adverse actions, the burden again shifts to Ms. Bertsch to demonstrate “that the proffered reason actually is pretext masking discriminatory animus.”
III. Pretext Analysis
To demonstrate pretext, a plaintiff must “prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.”
Courts in this Circuit have adopted a number of tools for evaluating pretext. A plaintiff may show “the employer’s proffered reason was so inconsistent, implausible, incoherent, or contradictory that it is unworthy of belief.”
Although Ms. Bertsch organized her closing argument and the proposed conclusions of law around a general pretext theory — as opposed to addressing each particular adverse action — this court will consider each adverse action in turn and evaluate “the facts as they appear to the person making the [adverse employment] .decision.”
A. Warehouse Relocation
With respect to the proposal that Ms. Bertsch relocate full-time to the warehouse, the court concludes that Ms. Bertsch’s supervisors held a good-faith belief that temporary relocation would decrease contention between members of the Media Department and allow Ms. Bertsch to focus on her work and improve her productivity, especially given the recent tension caused by the vendor email incident. . This conclusion is further supported, by the fact that Ms. Simon and Mr. Popel-ka apparently abandoned the plan after Ms. Bertsch took affirmative steps to address the issues that had necessitated their proposal in a series of emails to her supervisors and coworkers.
B. Corrective Action Plan
Turning to the corrective action plan, Ms. Bertsch failed to prove that Overstock’s efforts to respond to the vendor email incident and a subsequent investigation into tensions between Ms. Bertsch and members of the Media Department were pretextual.
At the time of the decision to adopt a corrective action plan, the personal dispute between Ms. Bertsch and Mr. Latimer was perceived as threatening workplace harmony and a relationship with an important vendor. Ms. Howard credibly testified that her investigation into the vendor email incident revealed issues with how Ms. Bertsch interacted with her coworkers, prioritized work, and contributed to a contentious work environment. Mr. Po-pelka had recently completed Ms. Bertsch’s 2004 Annual Review, during which Ms. Bertsch recognized the need to improve working within the team dynamic. And Ms. Simon, who received the vendor email, lacked any knowledge of Ms. Bertsch’s protected activity.
Moreover, Overstock issued a nearly identical disciplinary warning to Mr. La-timer'. The similarity between the corrective action plans suggests that Overstock intended .each corrective action plan to be a good-faith effort to exercise its business judgment in managing workplace behavior, as opposed to hidden discriminatory retaliation against a single employee. For all of these reasons, the court concludes that Ms. Bertsch has not demonstrated by a preponderance of evidence that Overstock’s reasons for the corrective action plan were pretextual.
C. Termination
Much of Ms. Bertsch’s pretext argument centered on her termination.
Several of Ms. Bertsch’s arguments are inconsistent with the court’s factual findings. For example, the court finds that Ms. Simon and Mr. Popelka credibly testified that the termination was unrelated to the Ms. Bertsch’s prior complaints. Ms. Simon, in particular, credibly testified that she possessed no knowledge of Ms. Bertsch’s protected activity until after the termination. Importantly, Ms. Bertsch’s supervisors had instructed her of the need to improve working within the team dynamic on several occasions prior to her termination. Rather than disagree with her supervisors, Ms. Bertsch promised to improve on multiple occasions.
This court is instructed to evaluate the facts from the perspective of the employer at the time of the adverse employment decision.
Ms. Bertsch’s pretext theory also relies in part on a mischaracterization of the weight and probative value of select evidence. For example, while a few coworkers responded to Ms. Bertsch’s emailed apology with kind words or confusion, the investigation and language of the correspondence indicated that Ms. Bertsch contributed to significant tension within the Media Department. Similarly, although Ms. Bertsch raised questions of whether she was responsible for cross-training Ms. Clark and whether she spent time at the warehouse, Ms. Bertsch cannot dispute that she continued to work part-time at the warehouse and failed to complete
Ms. Bertsch also maintains that the proffered bases for her termination changed over time.
Finally, Ms. Bertsch’s comparison of her termination and the subsequent discipline of Mr. Latimer fails to demonstrate pretext because the court does not possess enough information to conclude that Mr. Latimer was similarly situated to Ms. Bertsch.
For all of these reasons, the court must conclude that Ms. Bertsch failed to demonstrate that the stated reasons for her discharge were pretextual, or that the determinative factor in the decision to terminate her employment was a complaint to Ms. Howard during an investigation in February 2004, or a vague discussion in the hallway with Mr. Popelka many months earlier.
IV. Analysis Outside of McDonnell Douglas
Although the parties have stipulated to application of the three-factor test, the court will note that the Tenth Circuit has held “the McDonnell Douglas burden shifting analysis does not apply beyond the summary judgment' stage.”
Even if this court were to disregard the McDonnell Douglas framework, the court cannot conclude on the record before it that a relocation to an existing warehouse office, a corrective action plan enforced against two coworkers who had engaged in a public dispute over their responsibilities, and a decision, months later, to terminate one of these employees after she consistently failed to improve was caused by that employee’s discussion of a male coworker’s inappropriate conduct with Overstock’s Human Resources Director and the employee’s supervisor. Rather, this court must find, based on the evidence before it, that Overstock took lawful, reasonable steps to promote workplace harmony, create an adequate record of the need and scope of corrective action, and eventually terminated Ms. Bertsch after her conduct continued to cause problems in the work environment. In sum, Ms. Bertsch has failed to prove by a preponderance of the evidence that Overstock retaliated against her because she had
CONCLUSION
For all of these reasons, the court finds in favor of Overstock. The court directs the Clerk of Court to enter judgment in its favor and close the case.
. Several names changed in the eight years between Ms. Bertsch’s termination from Ov- ' erstock and the bench trial. Ms. Bertsch once used the name Elizabeth Sigler. During the events that gave rise to this suit, Karrie Howard used the name Karrie Sleater, and Erika Barney went by Erika Leifson. For the sake of clarity, the court refers to these individuals by the last name used at the time of trial.
. Although none of the witnesses provided an exact date, Mr. Hoy and Ms. Clark appear to have been hired in "the spring of 2004, after Overstock management became aware of issues arising out of Ms. Bertsch’s workload.
. At one point in time, Ms. Simon worked on a different floor. Although Ms. Simon did not interact with the Media Department on a daily basis, the court finds that Ms. Simon credibly testified that she observed and interacted with Ms. Bertsch in the workplace.
. Trial Ex. 1.
.Id.
. Trial Tr. 324:5-326:12.
. Trial Ex. 2.
. Id.
. Id.
. Trial Ex. 3.
. Trial Tr. 325:15-327:18.
. Tr. Ex. 2. Ms. Bertsch appears to have rated her performance slightly differently than Mr. Popelka. See Tr. Ex. 3. Ms. Bertsch testified that she felt positive after her 2004 Annual Review. Trial Tr. 248:3-7. Later that month, Ms. Bertsch received a raise, and her title changed from Inventory Control Lead to BMV Coordinator. Trial Ex. 20.
. Trial Tr. 406:4-407:21.
. Trial Tr. 192:11-12.
. Id. at 252:6-7.
. Id. at 252:21-22.
. Id. at 252:24-25.
. Id. at 253:9-18.
. Id. at 347:21-24.
. Ms. Bertsch also testified that she first approached Overstock's Human Resource Department in February 2004. She testified that she heard a rumor of an individual being terminated for complaining of sexual harassment, and that she was afraid of losing her job. Id. at 258:12-17.
. See Trial Ex. 6, at BER0268.
. At trial, Ms. Bertsch admitted that she had not articulated her complaints in detail prior to February 2004. Trial Tr. 385:23-386:16. Ms. Bertsch invites the court to find that Mr. Popelka admitted that Ms. Bertsch told him about Mr. Latimer's “disparaging and demeaning comments to and about women” during a UALD investigation. The court declines to adopt or accept as true the factual findings of the UALD investigation, especially here, where Mr. Popelka could not recall making this admission and there is no corroborating testimony. The court also notes that Ms. Simon credibly denied making statements that were incorporated into the UALD order. The court will limit its consideration to the documents and materials received at trial, those facts stipulated by the parties, and the live testimony that the court had the benefit of observing in person.
.Trial Ex. 4, at BER0218.
. Id.
. Id. at BER0217.
. Id.
. Trial Tr. 448:24-449:7.
. Id. at 449:8-19, 451:25-452:8.
. Id. at 257:22-258:1.
. Throughout trial, Ms. Howard provided credible testimony that should be entitled to particular weight. Ms. Howard, who no longer works at Overstock, lacked any apparent bias or incentive to mislead the court.
. Trial Ex. 5.
. Trial Tr. 99:9-11.
. Trial Ex. 6, at BER0214.
. Id. at BER0265.
. Id. at BER0268.
. Id. at BER0268.
. See supra Findings of Fact, Part C.
. Trial Tr. 99:25-100:4.
. Id. at 97:15-98:3.
. A verbal warning was not a necessary prerequisite to a written warning. The decision to issue a verbal or written warning depended on the severity of the incident. And verbal warnings were not always documented.
. Trial Tr. 87:13-21.
. Mr. Popelka was aware of the tension between Ms. Bertsch and Mr. Latimer. He was also aware of at least a few instances of Mr. Latimer’s inappropriate conduct, in part because of Ms. Bertsch’s prior complaints and his participation in the corrective action meeting with Mr. Latimer. At the same time, he was unaware of the specific details of Ms. Bertsch’s interview with Ms. Howard.
. Trial Tr. 412:3-24.
. At some point in time, Ms. Simon, believing that Ms. Bertsch did not like anyone, spoke with Ms. Bertsch about working full-time from her warehouse office in order to alleviate the contention between Ms. Bertsch and her coworkers. Similar to Mr. Popelka, she did not threaten Ms. Bertsch with termination or suggest that she resign.
. At trial, Ms. Bertsch argued that a draft severance agreement demonstrates that Mr. Popelka threatened her with termination. The court disagrees. First, there is credible testimony that termination was neither considered nor raised at that time. Second, Ms. Bertsch testified that she was not presented with a severance agreement. Trial Tr. 280:18-21. Third, Ms. Howard testified that it was unlikely that Ms. Bertsch would have been given a choice between termination and relocation to the warehouse. Id. at 81:10-20.
. TrialEx.il.
. Trial Ex. 8.
. Trial Ex. 10. Mr. Jourdane responded: “Why did you send me this? I don't have a clue what you're talking [sic] about.” Id.
. Trial Ex. 9. In his response, Mr. Fletcher acknowledged that Ms. Bertsch had problems with others in the Media Department, but he wrote that no apology was necessary because Ms. Bertsch had never upset him. He referenced their professional relationship and her completion of work. Id. In a candid response, Ms. Bertsch wrote: “I was told that there were people in the department that said I made them uncomfortable, they were intimidated by me, and that they felt they had to bribe me to get their work done. So, since I did not know who was talked to, I sent everyone a personal apology. God knows I need to, even my family has told me I can be a bitch at times. I would hope that if I ever do offend you or make you feel uncomfortable, that you would let me know.” Id.
. Trial Tr. 262:22-25.
. Id. at 413:4-10. The court cannot find that Ms. Bertsch was instructed to spend two weeks at the warehouse, because Ms. Bertsch’s testimony was not corroborated by additional testimony or actual events.
. See id. at 100:24vl01:7. At trial and in her deposition, Ms. Simon could not identify the "impetus” for her decision or recall who recommended corrective action. But this'is not inconsistent with her credible testimony that she ultimately elected for the corrective action based on the severity of the vendor email incident.
. Id. at 157:2-6.
. Id. at 453:2-7.
. The court further finds that Ms. Howard, who no longer works for Overstock but participated throughout the investigation and corrective action plan, credibly testified that Ms. Bertsch did not receive the corrective action plan because she complained about Mr. Latimer. Id. at 100:24-101:7.
. Trial Ex. 7.
. Id.
. Id. Mr- Latimer had received a prior verbal warning on May 6, 2003 for "failure to work cooperatively with others and demonstrated discourtesy.”
. Id.
. Id.
. Trial Ex. 12. The disciplinary notice referenced Ms. Bertsch’s 2004 Annual Review, in which Mr. Popelka and Ms. Bertsch discussed her need "to work better within the team dynamic.” Id.; see also Trial Ex. 2.
. Trial Ex. 12.
. Id.
. Id.
. Trial Tr. 414:1-3.
. See id. at 262:22-25; 324:10-13; 353:17-354:12.
. Id. at 100:8-11.
. Id. at 100:13-15.
. Id. at 100:24-101:7.
. Trial Ex. 13, at 1.
. Id.
. Id.
. See Trial Tr. 231:20-22 ("And so to me it continued this pattern that she wasn't going to get along with anybody no matter where she was working.”).
. See id. at 417:2-19, 417:24-418:6.
. Id. at 417:20-418:6.
. Id. at 162:21-163:1.
. See, e.g., id. at 448:1-449:19, 452, 355:20-456:1,
. Id. at 229:2-7.
. Id. at 415: 13-16.
. Trial Ex. 14.
. Id. at OSTK13.
. Id.
. Id. at 0STK14. Ms. Howard testified that it would have been her normal practice to have a manager create a summary of the reasons for termination. Trial Tr. 106:7-16. Mr. Popelka credibly testified that these were the issues that he and Ms. Simon considered as a basis for termination. As a result, while it is true that Mr. Popelka appears to lack an independent recollection of creating "Exhibit 4A,” the court rejects Ms. Bertsch’s argument that its contents were manufactured after the termination as a pretextual response to the UALD's investigation.
. In her proposed factual findings, Ms. Bertsch argues that termination based on failure to cross-train Ms. Clark is inconsistent with the Overstock’s theory that no transfer to the warehouse took place. See Dkt. 100, at 22-25. The court disagrees for three reasons. First, the court finds that Ms. Bertsch was instructed to cross-train several coworkers, including Ms. Clark, who was hired to alleviate Ms. Bertsch’s workload. Second, Ms. Bertsch herself admitted that she did not complete cross-training of at least one coworker. Third, the court notes that the core reason for Ms. Bertsch’s termination was her failure to consistently improve her working relationship with the team. See, e.g., Trial Ex. 18. In this respect, any failure to cross-train appears to be a secondary basis for termination — rather than a fatal flaw that demonstrates pretext.
. Trial Ex. 14, at OSTK14.
. Trial Tr. 274:25-275:3; see also id. at 276:16-18 ("I just remember them saying that I was fired for my behavior not improving and my quality of work suffering.”).
. In her papers, Ms. Bertsch points to Overstock's summary judgment briefing and argues that Overstock should be judicially estopped from arguing that Ms. Simon ultimately terminated Ms. Bertsch. The court disagrees and declines to apply the doctrine of judicial estoppel. Instead, the court rests its findings on the evidentiary record in its entirety, weighing the credibility of witnesses at trial.
. Ms. Howard also testified that she aided in the decision-making process and agreed with the ultimate outcome. Id. at 88:1-2, 107:1-11. Ms. Howard also assisted by preparing the termination documents.
. Id. at 418:18-22.
. The court further notes that Ms. Howard credibly testified that termination was unrelated to Ms. Bertsch’s complaints of how Mr. Latimer treated women. Id. at 110:22-111:6.
. The Tenth Circuit affirmed judgment in favor of Overstock on Ms. Bertsch’s disparate treatment claim.
. Trial Ex. 23, at OSTK123.
. Id.
. Id. at OSTK126.
. Id. at OSTK123, OSTK-125-OSTK126. The February 2004 disciplinary notice references the same policy but uses slightly different language.
. The court gave little weight to the reference to the same corporate policy in Mr. Latimer's disciplinary notices, in part because Ms. Bertsch declined to put on additional evidence about the factual basis for the disciplinary action.
. Trial Tr. 523:22-524:6.
. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1278 (10th Cir. 2010); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006).
. Bertsch v. Overstock.com, 684 F.3d 1023, 1028 (10th Cir. 2012).
. Id. at 1028-29.
. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citation omitted).
. Bertsch, 684 F.3d at 1028 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)).
. Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011) (internal quotation marks and citation omitted).
. Crumpacker v. Kansas Dep't of Human Res., 338 F.3d 1163, 1171 (10th Cir. 2003).
. Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004).
. Fye v. Oklahoma Corp. Comm’n, 516 F.3d 1217, 1228 (10th Cir. 2008).
. Morris v. City of Colorado Springs, 666 F.3d 654, 664 (10th Cir. 2012) ("Title VII does
. Id. (internal quotation marks and citation omitted).
. Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680 (10th Cir. 2007).
. Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir. 2005).
. See supra Findings of Fact, Parts C & E.
. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).
. Burlington N. & Santa Fe Ry. Co., 548 U.S. at 71, 126 S.Ct. 2405 (instructing courts to evaluate the action "from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances” (internal quotation marks and citations omitted)).
. Id.
. Ms. Bertsch's counsel described this interaction as a "threat,” but a more credible
. Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1202 (10th Cir. 2008).
. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (assuming two weeks and one month would be sufficient to support a prima facie case of retaliation).
.Id.
. Hinds, 523 F.3d at 1203.
. Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007) (quoting Young v. Dillon Companies, Inc., 468 F.3d 1243, 1253 (10th Cir. 2006)); see also Hinds, 523 F.3d at 1203.
. Proctor v. United Parcel Serv., 502 F.3d 1200, 1209-10 (10th Cir. 2007).
. See Hinds, 523 F.3d at 1204 (discussing three-month time period); Hysten v. Burlington N. & Santa Fe Ry. Co., 296 F.3d 1177, 1183 (10th Cir. 2002) (concluding causal connection not established when "[a]lmost three months” separated the protected activity and adverse action).
. See Zokari v. Gates, 561 F.3d 1076, 1081-82 (10th Cir. 2009) (concluding employee failed to demonstrate a causal connection when he could not show that the individuals who took the adverse action were aware of the protected opposition).
. See Findings of Fact, Parts C, E, & I.
. Ms. Bertsch raised a "cat's paw” theory in passing during her closing argument, relying on E.E.O.C. v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 486 (10th Cir. 2006). Although Mr. Popelka and Ms. Howard consulted with Ms. Simon about the appropriate course of action at various stages of Ms. Bertsch's employment, the court concludes that the doctrine should not be applied in this instance, where there is no evidence that either subordinate employee possessed the requisite animus or influence to use Ms. Simon. Id. at 486-88. Furthermore, Ms. Simon independently observed Ms. Bertsch in the workplace and during the vendor email incident, which led her to make her own conclusion about the appropriate course of action. See Macon v. United Parcel Serv., Inc., 743 F.3d 708, 715 (10th Cir. 2014) (holding doctrine did not apply when supervisor independently assessed misconduct).
. Compare infra Conclusions of Law, Part III.C, with Dkt. No. 100, at 34 (citing Proctor v. United Parcel Serv., 502 F.3d 1200, 1211 (10th Cir. 2007)). Ms. Bertsch argues, albeit briefly, that a party may demonstrate a causal connection by showing a pattern of retaliatory conduct. For this proposition, Ms. Bertsch relies on Fowler v. Westminster Coll., No. 2:09-CV-00591, 2012 WL 4378097 (D.Utah Sept. 25, 2012). Fowler is distinguishable and, in any event, there are not sufficient facts to support a pattern of retaliation in this case.
. Jencks v. Modern Woodmen of Am., 479 F.3d 1261, 1266 (10th Cir. 2007) (quoting Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996)).
. Piercy v. Maketa, 480 F.3d 1192, 1198 (10th Cir. 2007).
. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal quotation marks and citation omitted).
. Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1211 (10th Cir. 2010).
. Id. (internal quotation marks omitted).
. Id.
. Piercy v. Maketa, 480 F.3d 1192, 1200 (10th Cir. 2007) (quoting Miller v. Auto. Club of New Mexico, Inc., 420 F.3d 1098, 1123 (10th Cir. 2005)) (requiring courts to evaluate facts from the perspective of the person who made the adverse action, as opposed to the aggrieved employee, when evaluating the truth of the employer's belief).
. Reeves, 530 U.S. at 143, 120 S.Ct. 2097 (recognizing that prima facie proof, taken together with proof that an "explanation is unworthy of credence,” may permit the fact finder "to infer the ultimate fact of intentional discrimination” but also noting that this alone may not support liability in all cases).
. Macon, 743 F.3d at 714 (alteration in original) (quoting Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000)).
. Kendrick, 220 F.3d at 1231.
. Supra Findings of Fact, Part F.
. See Findings of Fact, Parts E-I.
. See, e.g., Trial Tr. 488-495; Dkt. No. 100, at 42-44.
.Dkt. No. 100, at 42-43; see Trial Tr. 495-499 (discussing attempts to impeach Mr. Po-pelka and Ms. Simon).
. Dkt. No. 100, at 43; Trial Tr. 488-89.
. Dkt. No. 100, at 43-44; Trial Tr. 489-90.
. Dkt. No. 100, at 43; Trial Tr. 490-94.
. Dkt. No. 100, at 44; Trial Tr. 494-495.
. As discussed above, the court concluded that Ms. Bertsch failed to satisfy her burden of presenting a prima facie case of retaliation for her termination. See supra Conclusions of Law, Part I.C.
. Piercy v. Maketa, 480 F.3d 1192, 1200 (10th Cir. 2007) (quoting Miller v. Auto. Club of New Mexico, Inc., 420 F.3d 1098, 1123 (10th Cir. 2005)).
. “[A]n employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147-48, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
.When evaluating whether an employer acted in “bad faith to cover up a discriminatory purpose,” the Tenth Circuit has held that the' finder of fact must be able to conclude that " ‘discrimination was a determinative factor in the employer's actions' — simply disbelieving the employer is insufficient.’ ” Piercy v. Maketa, 480 F.3d 1192, 1201 (10th Cir. 2007) (quoting Young v. Dillon Companies, Inc., 468 F.3d 1243, 1250 (10th Cir. 2006)).
. See, e.g., Dkt. No. 100, at 43-44.
. Id. at 43-44; Trial Tr. 488-90.
. Tyler v. RE/MAX Mountain States, Inc., 232 F.3d 808, 814 (10th Cir. 2000) (concluding plaintiff must "proffer evidence that shows each of the employer’s justifications are pretextual" or "cast[] substantial doubt on many of the employer’s multiple reasons”). Here, Ms. Bertsch neither controverted each of Overstock’s justifications nor cast substantial doubt on the majority of the reasons listed in the termination notice or Exhibit 4A.
. See Matthews v. Euronet Worldwide, Inc., 271 Fed.Appx. 770, 774 (10th Cir. 2008) ("[TJhere is no support for a finding of pretext if the employer does not give inconsistent reasons, but instead merely elaborates on the initial justification for termination.”).
. Trial Tr. 494-95.
. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1232 (10th Cir. 2000).
. See, e.g., Dkt. No. 100, at 44.
. See, e.g., Kendrick, 220 F.3d at 1233-34.
. Ms. Bertsch briefly argued that pretext (and therefore liability) may be based on a finding of improper motive. Dkt. No. 103, at 7-8. This line of reasoning appears to be foreclosed by University of Texas Southwestern Medical Ctr. v. Nassar, in which the Supreme Court held that a plaintiff must demonstrate "but-for” causation for retaliation claims. — U.S. —, 133 S.Ct. 2517, 2533, 186 L.Ed.2.d 503 (2013); see also Barrett v. Salt Lake Cnty., 754 F.3d 864, 868 (10th Cir. 2014) (rejecting "mixed motive” standard). In any event, the court does not need to reach the novel legal theory advocated by Ms. Bertsch, because Ms. Bertsch failed to prove that an improper motive drove Overstock’s decision to suggest relocation to the warehouse, issue a corrective action plan, or terminate her employment.
. Jones v. United Parcel Serv., Inc., 674 F.3d 1187, 1196 (10th Cir. 2012) (citing Randle v. Aurora, 69 F.3d 441, 453 (10th Cir. 1995)).
. Kendrick, 220 F.3d at 1226 (quoting Fallis v. Kerr-McGee Corp., 944 F.2d 743, 744 (10th Cir. 1991)).
. Davis v. Unified Sch. Dist. 500, 750 F.3d 1168, 1170 (10th Cir. 2014).
Reference
- Full Case Name
- Elizabeth Ann BERTSCH v. OVERSTOCK.COM
- Status
- Published