Ford v. Jackson Nat'l Life Ins. Co.

45 F.4th 1202

La'Tonya FORD, Intervenor Plaintiff - Appellant,

v.JACKSON NATIONAL LIFE INSURANCE COMPANY ; Jackson National Life Distributors LLC; Jackson National Life Insurance Company of New York, Defendants - Appellees.

No. 21-1126

United States Court of Appeals, Tenth Circuit.

FILED August 23, 2022

David C. Japha (Evan J. House with him on the brief), of Levin Jacobson Japha, P.C., Denver, Colorado, for Plaintiff-Appellant.

Robert Hochman of Sidley Austin LLP, Chicago, Illinois (David A. Gordon and Martha C. Clarke of Sidley Austin LLP, Chicago, Illinois; Heather Carson Perkins, Andrew J. Ball, and Ellen E. Boshkoff of Faegre Drinker Biddle & Reath LLP, Denver, Colorado, with him on the brief), for Defendants-Appellees.

Before MATHESON, PHILLIPS, and EID, Circuit Judges.

PHILLIPS, Circuit Judge.

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.

BACKGROUND

I. Factual Background

In 2006, Ford was hired as an internal wholesaler at Jackson's Atlanta office. In 2007, after the Atlanta office was closed, Ford transferred to Jackson's Denver office.

In early 2008, Jackson held an off-site work party. It was held at the home of John Poulsen, one of Jackson's regional directors. At least twenty other Jackson employees attended the party. Ford alleges that during the party, Poulsen told her to "get on your knees," placed a vodka bottle in his pelvic region, and then started "thrusting the bottle." Appellant R. vol. 2 at 289. Ford admits that she did not report this incident to Jackson's HR department. See Appellant R. vol. 3 at 365 ("[I]t didn't make any sense for me to go HR and complain again[.]"). But she believes that this type of behavior was emblematic of the hostile work environment she had to endure at the company.

In 2009, Ford was promoted from an internal wholesaler to a business development consultant. Between July 2009 and September 2010, Ford applied to fill any of eleven higher-ranking positions.¹ She applied once to be a director of advanced planning, twice for a desk-director position, and eight times for an external-wholesaler position—a highly coveted position within Jackson. For most of these positions, she made the shortlist and was interviewed. See Supp. R. at 132–33; see also Appellant R. vol. 3 at 676 (internal email stating that Ford was on the shortlist for an external-wholesaler position). But each time, Jackson chose someone else.

Jackson attributed Ford's lack of success to her not interviewing as well as the other candidates. But Ford thought something more nefarious was going on—she believed she was being discriminated against based on her race and gender.

On September 10, 2009, Ford's then-supervisor, Corey Walker, placed her on a performance improvement plan ("PIP"). The PIP charged Ford with certain performance deficiencies, such as "failing to meet her talk time requirement, being unwilling to help her peers, and failing to complete management requests." Appellant R. vol. 2 at 429.

The next day, in response to receiving the PIP, Ford submitted a four-page complaint to Jennifer Amsberry, who worked in Jackson's HR department. The complaint alleged that Walker had treated Ford unfairly and outlined other inappropriate conduct at Jackson. For instance, Ford alleged that Walker had allowed his team to have "racial and sexual discussions without reprimand" and had created an "unfair work environment that is prejudic[ial]." Supp. R. at 147.

To address Ford's complaint, Gary Stone (the head of Jackson's HR department who worked in Jackson's Michigan office) and Amsberry spent about two months investigating Ford's allegations. In November 2009, Stone and Amsberry concluded their investigation, finding that Ford hadn't been discriminated or retaliated against. Nor did they find that she was subject to a hostile work environment. Still, Stone wanted Ford to have a "fresh start" and agreed to rescind the PIP and to give her a new supervisor. Appellant R. vol. 2 at 430.

Robert Blanchette became Ford's supervisor. Ford shared with Blanchette that people on her team would often act inappropriately towards her. For example, Ford told Blanchette that her male coworkers would talk about her breasts and throw things at her. Based on what Ford had told him, Blanchette advised Walker "to watch this [situation] a little more closely." Appellant R. vol. 3 at 588. But Walker said that Ford was "making a big deal out of nothing." Appellant R. vol. 3 at 588.

On December 7, 2009, Ford submitted a formal complaint to the Equal Employment Opportunity Commission ("EEOC"). She alleged that Jackson had not promoted its minority employees at the same rate as its non-minority counterparts, that she experienced a hostile work environment, and that she was being retaliated against for complaining about this behavior.

Ford listed examples of the improper treatment she was receiving. These included: (1) her not receiving performance-based awards and benefits; (2) her not being promoted to higher-ranking positions; and (3) her being singled out by Walker for unfair treatment. Ford also alleged that Walker allowed workers to have "openly racist and sexual discussions." Appellant R. vol. 4 at 950. As examples, she said that after Barack Obama was elected president, her coworkers made comments such as "Watermelon is going to be on sale," and "Chevy Impalas will be discounted." Id. She also alleged that Walker allowed Alex Crosby, one of her coworkers, to share pornographic images with the team, and he allowed Crosby to ask Ford sexually explicit questions, such as "How big are your boobs?" and "What size bra do you wear?"—without reprimand. Id. Finally, she alleged that, after she complained about this behavior, Walker retaliated against her by placing her on a PIP and unfairly scrutinizing her work.

Sometime in late 2009, James Bossert, one of Jackson's vice-presidents, ordered Blanchette to give Ford a negative evaluation. Blanchette testified that the negative evaluation was Jackson's way of "building a case" against Ford. Appellant R. vol. 3 at 584. According to Blanchette, Bossert thought that Ford "was more trouble than she's worth in this organization, and she's not going to be promoted to an external [wholesaler]," so it would be better to "figure out how to get rid of her." Appellant R. vol. 3 at 578. Indeed, Blanchette testified that during a meeting discussing potential candidates for an external-wholesaler position, when someone mentioned Ford's candidacy, Bossert laughed and said, "Let her try." Appellant R. vol. 3 at 587. Despite Bossert's instructions, Blanchette declined to give Ford a negative evaluation, instead evaluating Ford's work as "meet[ing] expectations." See Appellant R. vol. 2 at 352. Ford agreed that this evaluation was appropriate.

Blanchette also testified that Bossert wanted him to fire Ford and another African-American, female employee, Kimberly Funchess. Appellant R. vol. 3 at 580 ("Q: He instructed you to actually terminate them? A: He did."). Blanchette refused.

In January 2010, two vice-presidents who reported to Bossert, Paul Fitzgerald and Jack Mishler, met with Blanchette. Fitzgerald and Mishler told Blanchette that he wasn't "a leader because [he] refused to get rid of Funchess and Ford." Appellant R. vol. 3 at 579. They insinuated to Blanchette that he would be fired if he did not fire Ford and Funchess.

In February 2010, Jackson fired Blanchette. Blanchette believes he was terminated for not firing Ford and Funchess. After his firing, Blanchette testified about the derogatory comments that he had heard Mishler, Fitzgerald, and Bossert make about Ford and Funchess. For example, he testified that he heard Mishler call Ford and Funchess "Black bitches" and "Black Panthers."² Appellant R. vol. 3 at 581–82. Blanchette also testified that Bossert would call Ford and Funchess "resident street walkers."³ Appellant R. vol. 3 at 579.⁴

After Blanchette's firing, Bossert was assigned as Ford's supervisor. Ford raised concerns with Stone that Bossert and Walker were treating her unfairly. For example, she alleged that she had been denied a yearly merit award and promotions because of her race and gender. Ford also believed that the territories that she had cultivated were being unfairly reassigned to other coworkers, which negatively affected her pay. She also complained that she was being asked to train her colleagues more than were her white, male counterparts. Ford alleged that this added training time also adversely affected her pay because it gave her less time to develop her territories. Finally, Ford complained that Walker and Bossert were not giving her timely quarterly evaluations, which affected her ability to improve. In May 2010, Ford supplemented her EEOC charge with these same complaints.

On September 10, 2010, Bossert emailed Stone. Bossert noted his concern that Ford had applied for another promotion. Bossert asserted his belief that Ford would "leverage that position into an opportunity to work against the company's interest by furthering her complaint." Appellant R. vol. 3 at 661. The relevant portion of the email states:

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