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Bennett v. Windstream Communications, Inc.

United States Court of Appeals, Tenth Circuit

July 9, 2015

SUSAN G. BENNETT, Plaintiff - Appellant,
WINDSTREAM COMMUNICATIONS, INC., a Delaware corporation, Defendant - Appellee


Courtney D. Powell (and Shannon F. Davies, with her on the brief), Lester, Loving & Davies, P.C., Edmond, Oklahoma, for Plaintiff - Appellant.

Michael R. Pacewicz (and Christina F. Cupp, with him on the brief), Crowe & Dunlevy, Tulsa, Oklahoma, for Defendant - Appellee.

Before KELLY, EBEL, and LUCERO, Circuit Judges.


KELLY, Circuit Judge.

Plaintiff-Appellant Susan Bennett appeals from the district court's grant of summary judgment in favor of her employer, Defendant-Appellee Windstream Communications, Inc. (Windstream). Bennett v. Windstream Commc'ns, Inc., 30 F.Supp.3d 1243, 1260 (N.D. Okla. 2014). Ms. Bennett brought several claims alleging gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (Title VII), age discrimination under the Age Discrimination in Employment Act (ADEA), violation of the Oklahoma Antidiscrimination Act (OADA), and constructive discharge in violation of Oklahoma public policy and federal law. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


In 2011, Windstream acquired the company that had employed Ms. Bennett for twelve years, Paetec Communications, Inc. (Paetec). At the time of the acquisition, Ms. Bennett was a Fiber Optic Tech III (FOT-III), responsible for locating fiber optic cable, repairing, splicing, and testing it, and performing routine weekly and monthly maintenance at various sites. II App. 360, 367. Her service area generally covered Stroud, Kiefer, Tulsa, Muskogee, and Vian in Oklahoma, and Ozark and Van Buren in Arkansas. Id. at 362.

After the acquisition, Ms. Bennett's pay and benefits remained the same. I App. 212. Windstream employed written policies against workplace discrimination, and its " People Practices" manual stated it " will not tolerate any type of harassment or discrimination against any employee by coworkers, management, customers or vendors." Id. at 78.

A few months after Windstream assumed Paetec's operations, Todd Moore became Ms. Bennett's supervisor. Mr. Moore also supervised other former Paetec technicians located in Oklahoma and Missouri. Id. at 202-03. In April 2012, Mr. Moore instituted a policy requiring all technicians, including Ms. Bennett, to check in to an assigned manned office each morning at 8 a.m. unless they had tasks to perform at other worksites. Id. at 203, 224-25. Ms. Bennett was assigned to check in at the Tulsa office, which was the closest manned office to her home in Gore, Oklahoma. Id. at 231-32. Given the distance between Gore and Tulsa, Ms. Bennett was required to commute a total of almost four hours each day. Prior to the acquisition, Ms. Bennett had worked out of a small office in a regeneration site in Vian, Oklahoma, substantially closer to her home in Gore. II App. 364-65.

Ginine Stover, a Human Resources specialist, testified that the check-in policy, though not written, was standard Windstream practice. I App. 213. Windstream provided several reasons for the policy, including the volume of work and number of customers located in the Tulsa and northeastern Oklahoma area. Id. at 203. Also, the check-in requirement enabled the integration of Paetec into Windstream through employee cross-training. Id. at 203-04. Windstream generally required technicians to store company vehicles on secured company premises; technicians drove privately-owned vehicles to and from the office each day. See id. at 234-35. The check-in policy was consistent with this procedure.

Ms. Bennett understood that she was required to report to the Tulsa office each morning at 8 a.m. Id. at 226-27. Yet, she often arrived at the Tulsa office more than two hours late. Id. at 204. On a number of occasions, she did not report to the Tulsa office at all or left several hours early to drive home, rather than working until 5 p.m. as required. Id. She informed Windstream she was unable to make the long commute due to personal responsibilities. II App. 290. But, as Ms. Bennett conceded during oral argument, she never directly requested an accommodation from the check-in requirement. Regardless, although Windstream apparently does make certain workplace accommodations for its employees, no such accommodations were available for this situation. Id. at 327-30.

Donald Rogers, Area Manager of Operations for Windstream and Mr. Moore's direct supervisor, stated that Ms. Bennett's time and attendance issues made it impossible to implement a complete cross-training program for her. I App. 204. Often, the Windstream technician with whom she was scheduled to train had left the office to begin field work by the time she arrived in Tulsa midmorning. " Had Ms. Bennett complied with the requirement to report to the office at 8:00 a.m., she would have received the same cross-training opportunities as all other technicians." Id. Ms. Bennett testified she was not aware of any employees who were offered training opportunities not offered to her. Doc. 36-3 at 117.

Ms. Bennett received a " final coaching" session--the first disciplinary step under Windstream's progressive discipline policy--regarding her tardiness and absences from Mr. Moore and Ms. Stover on May 22, 2012. I App. 217, 247. On the same day, during a phone call, Ms. Bennett reported she was experiencing chest and shoulder pain due to work-related stress. She stated she had an appointment to visit a doctor the following day. II App. 411-13. Mr. Rogers directed Mr. Moore to complete a ...

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