Labor & Employment Law Daily Wrap Up, DISCRIMINATION—10th Cir.: Native American university employee, fired after complaining of bias, revives Title VII claims but not FMLA claim, (Jan 15, 2025)

By Kathleen Kapusta, J.D.

The employee alleged her supervisor made comments such as “Let’s have a powwow” and “I don’t want you going on the warpath.”

A Native American university employee who was purportedly fired for poor performance and improper timekeeping less than a month after she reported sex and race discrimination provided sufficient evidence to allow a factfinder to conclude the university’s proffered reasons for terminating her were unworthy of credence, the Tenth Circuit ruled, reversing summary judgment against her Title VII discrimination and retaliation claims. As to her FMLA retaliation claim against her supervisor, the court joined its sister circuits in holding that the FMLA permits individual liability and the economic reality test determines whether an individual qualifies as an FMLA employer. Because the employee disputed only whether the test applied, and not the lower court’s application of the test, the appeals court affirmed summary judgment against this claim (Dixon v. State of Oklahoma, No. 24-7016 (10th Cir. Jan. 14, 2025)).

Supervisor’s comments. The employee, who is a member of the Cherokee Nation, began working in the university’s IT department in 2013. She claimed that in 2015, a new supervisor asked about her name, assigned women to gender stereotypical roles, stated that a Cherokee chief was “slow and not very smart and not a good leader,” and told her “why don’t you girls take care of” organizing, planning, and cleaning for office parties.

In 2015 through 2017, the supervisor rated the employee as meets expectations for all her job duties on her performance evaluations. In January 2018, the employee told the university’s Title IX officer that the supervisor made comments such as “Let me be the dick and take this to them,” “Let’s have a powwow,” and “I don’t want you going on a warpath.”

Reprimand. In March, she called in sick for two days due to a seizure. When she later told her supervisor she wanted to report those days as compensatory time because she had worked 30 hours over spring break, he “sort of shrugged and walked off.” After she reported them as comp time, he told her she could not do that, ordered her to correct her report, and officially reprimanded her.

In response, the employee emailed the HR director questioning the reprimand, complained about racist and sexist language, and stated that she wanted a thorough investigation. The HR director then began characterizing the employee’s time report as a “falsified leave report.” She also claimed that the employee had falsified leave reports in the past.

FMLA leave. While her complaint was pending, the employee took FMLA leave due to her daughter’s health issues. About a month after she returned, the HR director met with the university’s general counsel and the supervisor and, in notes from that July meeting, wrote that the employee was not a “key” employee under the FMLA.

August notes. Also in July, the employee, during an interview with investigators, repeated her complaints of race and gender discrimination, providing additional details of the allegedly harassing behavior. In August, the HR director again met with the supervisor and general counsel. In her notes from that meeting, she questioned whether they could prove a false claim, asking among other things “can we find evidence of gross misconduct on L Drive?”

Termination. The employee was fired the following day, purportedly for poor performance and timekeeping issues.

Lower court proceedings. She sued the university for race and sex discrimination and retaliation in violation of Title VII and her supervisor for FMLA retaliation and the district court granted summary judgment against all claims. As to her FMLA claim specifically, the court found that the supervisor was not her employer.

Title VII discrimination. On appeal, the Tenth Circuit first found the employee, as a Native American woman who was qualified for her job, suffered an adverse action, and was replaced, established a prima facie case on her sex and race discrimination claims. She also presented sufficient evidence of pretext, said the court, pointing to the HR director’s notes from her July and August meetings with the supervisor and general counsel.

Notes. Her July notes about failing to reinstate a key employee under the FMLA were sufficient to permit a reasonable inference that the university wanted to fire her before it fully investigated her complaint. The notes were written four days before investigators even interviewed the employee and discussed whether the university could avoid reinstating her after her leave.

In addition, the HR director’s August notes listed reasons for terminating someone due to “falsification of records” and “performance-gross?” The notes also included reasons for termination that the university did not mention in the employee’s termination letter, and stated “can we show copy or delivery to home emails?” and “can we find evidence of gross misconduct on L Drive?” From this, said the court, a reasonable juror could infer that the university was grasping for reasons to fire the employee.

While the district court dismissed the notes, stating they were “undated and/or unsigned,” the HR director testified that she wrote the notes, dated the July notes, and took the other notes before or during the August meetings discussing the employee’s termination.

Additional evidence of pretext. In addition to the notes, the employee’s performance evaluations showed the university was generally satisfied with her performance. Further, a university official not only testified that the timekeeping issue was the main reason the employee was terminated, her supervisor admitted there was no documentation he could recall of her performance issues.

Turning to the supervisor’s reprimand of the employee for improper timekeeping, the court noted that the employee testified she thought he had approved her claiming comp time and she corrected her report at his request. There was also evidence the university’s practice of granting comp time was informal, undocumented, and confusing. Nor did the supervisor refer to the employee’s comp time claim as a falsified leave report and the university only did so after the employee complained of discrimination. Based on all these reasons, the court reversed summary judgment against the employee’s sex and race discrimination claims.

Title VII retaliation. Regarding the employee’s Title VII retaliation claim, the court again found she established her prima facie case. Her interview with the university investigators, in which she repeated her sex and race discrimination complaints, was protected activity. Though the district court held that it was not because she “merely ‘repeated’ her earlier claims,” Title VII, said the appeals court, “contains no such limitation.”

Further, her termination was an adverse action and the three weeks between her protected activity and her termination was sufficient to establish a causal connection. In addition, her pretext evidence for her Title VII discrimination claims was sufficient to establish pretext for her retaliation claim, said the court, reversing summary judgment against this claim as well.

FMLA retaliation. Appealing the grant of summary judgment on her FMLA retaliation claim against her supervisor, the employee argued that the district court should not have applied the economic reality test to determine whether her supervisor was her employer under the FMLA. The FMLA, observed the court, defines “employer” to “include[]... any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.” The court further noted that this definition largely tracks the definition of the FLSA’s definition of employer, and it has permitted FLSA suits for individual liability.

While it had not yet addressed whether the FMLA permits an action for individual liability or how to determine whether a person “acts, directly or indirectly, in the interest of an employer,” the court, joining other circuits that have concluded that that FMLA’s plain language permits claims for individual liability, held that the FMLA permits individual liability and the economic reality test determines whether an individual qualifies as an FMLA employer.

Because the employee disputed only whether the economic reality test applied and not the lower court’s application of the test, the Tenth Circuit affirmed summary judgment for her supervisor on this claim.

The case is No. 24-7016.

Judge: Matheson, S.

Attorneys: Mark Hammons (Hammons, Hurst & Associates) for Marci D. Walkingstick Dixon. Lexie P. Norwood, Oklahoma Attorney General’s Office, for State of Oklahoma.

Cases: RaceDiscrimination SexDiscrimination Discrimination Retaliation Discharge EmployeeLeave EmployeeStatus ColoradoNews KansasNews NewMexicoNews OklahomaNews UtahNews WyomingNews