APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO D.C. No. 1:08-CV-00449-JLK
The opinion of the court was delivered by: McKAY, Circuit Judge.
Elisabeth A. Shumaker Clerk of Court
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
Before MURPHY, McKAY, and TYMKOVICH, Circuit Judges.
Patricia Simmons appeals from the district court's grant of summary judgment in favor of her former employer, Sykes Enterprises, on her claim of discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. The district court concluded Ms. Simmons had failed to establish that Sykes' reason for terminating her employment was pretextual. For the following reasons, we AFFIRM.
Ms. Simmons began working for Sykes in 1997, first as a phone technician then later as a technician/assistant within the Human Resources ("HR") Department at Sykes' Sterling, Colorado office. By all reports, Ms. Simmons was a good employee during the ten years she was employed.
Ms. Simmons alleges her work environment grew hostile in June 2007 upon the return of Persephone James as the Sterling office's site director. Shortly after returning to the Sterling office, Ms. James allegedly told Ms. Simmons in an "almost vicious" manner she thought Ms. Simmons had already retired. (Simmons Dep. 170:7-11, Aug. 7, 2008, Appellant's App. at 128.) Ms. James also allegedly told Ms. Simmons at an office party: "You better slow down because at your age you're going to have a heart attack if you keep this up." (Id. 173:7-9.) Ms. Simmons also alleges Amanda Owen, Sykes' Sterling HR supervisor, made hostile comments about her to other co-workers. Specifically, Ms. Owen allegedly asked another employee whether Ms. Simmons repeated herself and stated "now that Pat is getting older she seems to forget a lot and is always repeating herself." (Gaddis Aff. ¶ 2, Aug. 14, 2008, Appellant's App. at 321.) Ms. Sim mons never complained to management about either Ms. James or Ms. Owen.
In early August 2007, an aggrieved employee complained to Ms. Owen that somebody within the company had improperly disclosed the employee's confidential medical information. Ms. Owen notified Jeff Bieker, Sykes' regional HR Manager, and Mr. Bieker instructed Ms. Owen to begin interviewing those mentioned in the complaint. Shortly thereafter, Janice DiRose, Sykes' corporate employment counsel and senior director of HR compliance, was notified of the complaint. Ms. DiRose instructed Ms. James to interview and obtain written statements from those involved. Ms. James, Ms. Owen, and Mr. Bieker all participated in the investigation. They determined from initial interviews and statements that Ms. Simmons had disclosed the confidential information to another HR associate, Sharon Gaddis, who in turn disclosed it to others outside of their department.
On August 2, Ms. Gaddis answered questions and signed a statement, typed by Ms. James, implicating Ms. Simmons as the source of the confidential information. On August 7, Ms. Gaddis supplemented her statement with information suggesting the confidential information had also been disclosed in a manner independent from Ms. Simmons' conduct. Although Ms. Gaddis has since disavowed her statements, at no time during the investigation did she recant her allegations despite having the opportunity to do so.
Ms. James and Mr. Bieker twice met with Ms. Simmons to question her about the disclosure. Prior to answering their questions, Ms. Simmons read and signed a Notice of Investigation ("NOI"). The NOI informed her she would not be retaliated against for participating in the investigation but she would be subject to discipline or termination for disclosing confidential information, providing false or misleading information, or sharing any information regarding the investigation. During both interviews, Ms. Simmons denied any wrongdoing.
After Ms. James, Ms. Owen, and Mr. Bieker completed their interviews, Ms. DiRose reviewed the collected statements and personally interviewed Ms. Gaddis and Ms. Simmons. Ms. Simmons again denied having disclosed the confidential information. However, Ms. DiRose believed that, over the course of the investigation, Ms. Simmons gave inconsistent answers regarding her knowledge of the confidential information and discussed other employees' confidential medical information. During a conference call between Ms. James, Ms. Owen, Mr. Bieker, and Ms. DiRose, Mses. James and Owen recommended Ms. Simmons be terminated.*fn1 Ms. DiRose then recommended to Jenna Nelson, Sykes' senior vice president of HR, that Ms. Simmons be terminated, and Ms. Nelson authorized the termination.
Sykes fired both Ms. Simmons, who was sixty-two, and Ms. Gaddis, who was twenty-three. After her termination, Ms. Simmons filed a complaint with the Equal Employment Opportunity Commission. After receiving a Dismissal and Notice of Rights, she filed this lawsuit in district court. The court granted summary judgment in favor of Sykes, concluding Ms. Simmons did not establish any dispute of material fact ...