                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                          April 30, 2020
                         _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
 AARON L. SAMPSON,

       Plaintiff - Appellant,

 v.                                                        No. 19-4095
                                                   (D.C. No. 2:17-CV-00947-DN)
 KANE IS ABLE, INC.,                                         (D. Utah)

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
                   _________________________________

      Aaron Sampson appeals the district court’s order granting summary judgment

to Kane Is Able, Inc. (Kane). For the reasons explained below, we affirm.

                                     Background

      In 2015, Kane hired Sampson, who is African American, as a lead lift-truck

operator at its warehouse in Salt Lake City, Utah. Like lift-truck operators without

the “lead” designation, Sampson’s duties included operating a forklift to move

materials in the warehouse. The lead designation gave him some supervisory




      *
        This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
authority over other lift-truck operators: he could oversee their work and train them,

but he could not discipline them.

      In November 2015, Sampson told his supervisors that his coworkers were

mistreating him based on his race. He later repeated this complaint, along with

others, to Kane’s human-resource department. Kane investigated his complaints but

found them unsubstantiated. Sampson also received two negative performance

reports; although he later admitted to the underlying conduct, he also believed the

reports were unfair. In early June 2016, Sampson filed an intake form with the Utah

Antidiscrimination & Labor Division (UALD), seeking to file a formal charge of

race-based discrimination against Kane; on June 8, he told Kane that he had done so.

      Also in June, Kane investigated two incidents allegedly involving Sampson

“rummag[ing] through” both a coworker’s and his supervisor’s desks. App. vol. 5,

544. In particular, in April, one of Sampson’s coworkers saw Sampson going through

her desk; she reported it to another employee. Then, on May 31, another employee

saw Sampson going through his supervisor’s desk; the employee reported this

incident to the supervisor on June 1. On June 15, human-resource personnel learned

of these allegations and initiated an investigation. The next day, they asked the

coworker and supervisor for written statements about the incidents. Sampson denied

that either incident occurred. On June 30, Kane suspended Sampson with pay

pending the outcome of the investigation.

      Kane ultimately found the allegations regarding Sampson’s rummaging

through the coworker’s and supervisor’s desks to be credible. Kane told Sampson

                                              2
that his actions constituted “gross misconduct” warranting immediate termination.

App. vol. 2, 198. But because Kane did not investigate “in a time frame more

contemporaneous with” the relevant incidents, it chose instead to suspend Sampson

without pay for one week, beginning on July 21; reduce his pay by 6.7% (from

$14.86 to $13.86 per hour); and remove his lead designation. Id.

      But after his one-week suspension without pay, Sampson never returned to

work; he testified that he viewed Kane’s actions as a termination. When Sampson did

not return to work as scheduled on Thursday, July 28, Kane warned him that if he

failed to report to work on July 29 and August 1, Kane would view his absence as if

he had “terminated [his] employment.” Id. at 200. And when Sampson failed to

return to work on either July 29 or August 1, Kane informed Sampson that it was

characterizing his actions as a voluntarily termination of his employment.

      Sampson subsequently sued Kane, and Kane moved for summary judgment.

Sampson consented to entry of judgment on all but two of his claims: that Kane

violated both 42 U.S.C. § 1981 and a provision of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-3(a), by terminating him in retaliation for raising his

concerns with Kane personnel and the UALD.

      The district court granted Kane’s motion, finding that Sampson had not

demonstrated a prima facie case of retaliation under § 1981 or Title VII because no

reasonable jury could conclude that Kane constructively discharged Sampson.

Sampson appeals.



                                              3
                                       Analysis

      “We review the district court’s order granting summary judgment de novo,

applying the same standard as the district court.” Fassbender v. Correct Care Sols.,

LLC, 890 F.3d 875, 882 (10th Cir. 2018). Summary judgment is appropriate if “there

is no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ if, under the governing

law, it could have an effect on the outcome of the lawsuit. A dispute over a material

fact is ‘genuine’ if a rational jury could find in favor of the nonmoving party on the

evidence presented.” EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190

(10th Cir. 2000) (citation omitted). We view the evidence before the district court “in

the light most favorable to the nonmoving party” and draw any reasonable inferences

from that evidence in the nonmoving party’s favor. Fye v. Okla. Corp. Comm’n, 516

F.3d 1217, 1223 (10th Cir. 2008).

      To establish a retaliation claim under § 1981 or Title VII, a plaintiff must

either present direct evidence of discrimination or proceed under the burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Crowe v.

ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (noting that “the

standards are the same” for § 1981 and Title VII). Here, as he did below, Sampson

acknowledges that there is no direct evidence that Kane acted with a retaliatory

motive. Like the district court, we therefore evaluate his retaliation claims under the

McDonnell Douglas framework.



                                               4
      Under this framework, Sampson bears the initial burden of making a prima

facie demonstration of unlawful retaliation by showing that “(1) he engaged in

protected activity; (2) he suffered an adverse employment action; and (3) there is a

causal connection between his protected activity and the adverse employment

action.” Davis v. Unified Sch. Dist. 500, 750 F.3d 1168, 1170 (10th Cir. 2014). If

Sampson makes this showing, then Kane bears the burden of “offer[ing] a legitimate,

nonretaliatory reason for its decision.” Twigg v. Hawker Beechcraft Corp., 659 F.3d

987, 998 (10th Cir. 2011). And if Kane makes such a showing, the burden returns to

Sampson to demonstrate that Kane’s reason is pretextual. Id.

      Here, the district court did not reach the latter steps of the McDonnell Douglas

framework because it concluded that Sampson failed to meet his initial burden. In

particular, the district court determined that Sampson failed to demonstrate an

adverse employment action. Challenging this determination on appeal, Sampson

argues that a reasonable jury could find he suffered an adverse employment action

because Kane either actually discharged him or constructively discharged him.

Specifically, Sampson argues that Kane actually or constructively discharged him by

suspending him for a week without pay, “eliminating his position” as lead lift-truck

operator, removing his supervisory responsibilities, and reducing his pay. Aplt. Br.

31. And according to Sampson, the events leading up to his termination “only added

to the objectively intolerable conditions” that made it impossible for him to return.

Id. at 35. We disagree.



                                              5
      As an initial matter, it appears that Sampson never presented his actual-

discharge argument to the district court. He therefore forfeited any such argument.

See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011). And

although we can review forfeited arguments for plain error, Sampson’s failure to

argue for plain error on appeal effectively waived his actual-discharge argument. See

id. at 1130–31. Nevertheless, we have discretion to review a forfeited or waived

argument, and we exercise that discretion here. See Medina v. Catholic Health

Initiatives, 877 F.3d 1213, 1227 n.6 (10th Cir. 2017) (noting that “waiver is a

discretionary doctrine”).

      To show actual discharge, Sampson must make a prima facie demonstration

that Kane’s language or conduct would “logically lead a prudent person to believe”

he or she had been discharged. Fischer v. Forestwood Co., 525 F.3d 972, 979 (10th

Cir. 2008) (quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 88 (2d Cir.

1996)). Stated differently, “[a]n actual discharge does not occur . . . when the

employee chooses to resign rather than work under undesirable conditions.” Id. at

980. Sampson argues that the elimination of his lead designation meant he had no

position to return to after his suspension. But Sampson’s position was not eliminated;

instead, Kane repeatedly asked Sampson to return to work as a lift-truck operator

without the lead designation. And a “prudent person” would not “logically” interpret

Kane’s requests that Sampson return to work to mean that “his [or her] tenure ha[d]

been terminated.” Id. at 979 (quoting Chertkova, 92 F.3d at 88). Thus, Sampson



                                               6
“cho[se] to resign rather than” return to Kane in an “undesirable” position as a lift-

truck operator, and Kane did not actually discharge Sampson. Id. at 980.1

      Next, Sampson argues a reasonable jury could find that Kane constructively

discharged him and that the district court erred in concluding otherwise. Constructive

discharge occurs when an employer’s actions make working conditions “so difficult”

or “intolerable” that the employee “ha[s] no other choice but to quit.” Hiatt v. Colo.

Seminary, 858 F.3d 1307, 1318 (10th Cir. 2017) (quoting Bennett v. Windstream

Commc’ns, Inc., 792 F.3d 1261, 1269 (10th Cir. 2015)). This standard is objective:

the court “disregard[s] both the employee’s subjective view of the workplace

environment and the employer’s subjective intentions regarding the employee.” Baca

v. Sklar, 398 F.3d 1210, 1216 (10th Cir. 2005). And if an employee resigns of his

“own free will, even as a result of the employer’s actions, that employee will not be

held to have been constructively discharged.” Id. (quoting Jeffries v. Kansas, 147

F.3d 1220, 1233 (10th Cir. 1998), abrogated on other grounds by Burlington Indus.,

Inc. v. Ellerth, 524 U.S. 742 (1998)).

      Sampson argues that Kane’s actions—suspending him for a week without pay;

removing his lead designation and supervisory responsibilities; and reducing his pay



      1
        Sampson’s reliance on McInerney v. United Air Lines, Inc., 463 F. App’x 709
(10th Cir. 2011) (unpublished), does not alter our conclusion. There, the employer
had discretion to extend the leave of an employee who “desperately wanted to keep
working,” but it instead decided to terminate the employee. Id. at 716–17. Here, by
contrast, Kane did not terminate Sampson’s employment; it repeatedly asked
Sampson to come back. That Sampson chose not to return does not mean that Kane
actually terminated him.
                                               7
by $1 per hour—constitute constructive discharge. And it is true that “[a] perceived

demotion or reassignment to a job with lower status or lower pay may, depending

upon the individual facts of the case, constitute aggravating factors that would justify

[a] finding of constructive discharge.” James v. Sears, Roebuck & Co., 21 F.3d 989,

993 (10th Cir. 1994). But whatever Sampson’s subjective impression of his reduced

pay and attendant loss of responsibilities, he has not shown that a reasonable jury

could find these conditions so “objectively intolerable” that he “had no other choice

but to quit.” Hiatt, 858 F.3d at 1318 (quoting Bennett, 792 F.3d at 1269).

      The cases Sampson cites to support his constructive-discharge argument all

involve some combination of large pay cuts, great losses of responsibility, and being

forced to choose between quitting or being terminated. See, e.g., Douglas v. Orkin

Exterminating Co., No. 98-8076, 2000 WL 667982, at *4 (10th Cir. 2000)

(unpublished) (reversing summary judgment for employer on state-law breach-of-

contract claim where employer “demoted [employee] from the highest to the lowest

position available . . . and reduced his compensation by more than half”); James, 21

F.3d at 991, 993 (affirming jury’s constructive-discharge finding where employees

could either quit with 35% pension-benefit cut or stay “while being harassed or

moved to jobs where unreachable quotas could be used as a pretext for firing them”);

Spulak v. K Mart Corp., 894 F.2d 1150, 1154 (10th Cir. 1990) (affirming jury’s

constructive-discharge finding where employer gave employee choice between either

quitting and taking early retirement benefits or being terminated and losing

retirement benefits), abrogated on other grounds by Hazen Paper Co. v. Biggins, 507

                                               8
U.S. 604 (1993); Cockrell v. Boise Cascade Corp., 781 F.2d 173, 175, 178 (10th Cir.

1986) (reversing directed verdict for employer because facts could support

constructive-discharge finding where employee believed he would receive 40% pay

cut along with demotion from managing five lumberyards to one).

      By contrast, Sampson faced far less onerous consequences from Kane’s

actions. Indeed, Sampson concedes that “taken alone,” Kane’s decision to reduce his

pay 6.7%, from $14.86 per hour to $13.86 per hour, “would likely not support [his]

claim.” Rep. Br. 6. And even combining that pay cut with the one-week unpaid

suspension and the loss of some responsibility is not enough to show constructive

discharge in this case. As lead lift-truck operator, Sampson shared many of the same

duties as other lift-truck operators, although he also had some authority to oversee

lift-truck operations. And he himself admits that even though he oversaw some of the

work in the warehouse, he lacked the authority to discipline his coworkers or even to

refer to himself as a supervisor. And rather than giving him “no choice but to quit,”

Kane repeatedly asked him to return as a lift-truck operator with a 6.7% pay cut and

many of the same duties as a lead lift-truck operator. These consequences are not so

“objectively intolerable” that Sampson “had no other choice but to quit.” Hiatt, 858

F.3d at 1318 (quoting Bennett, 792 F.3d at 1269). And as the district court concluded,

this remains true despite Sampson’s subjective belief that Kane had terminated him;

the constructive-discharge test is purely objective. See id.

      Accordingly, Sampson has not shown that “the individual facts of th[is] case[]

constitute aggravating factors that would justify [a] finding of constructive

                                               9
discharge.” James, 21 F.3d at 993. He therefore cannot establish a prima facia case of

retaliatory discrimination. See Davis, 750 F.3d at 1170.

                                     Conclusion

      Because Sampson fails to make a prima facie demonstration that “he suffered

an adverse employment action” by either actual or constructive discharge, we decline

to consider his remaining arguments. Davis, 750 F.3d at 1170. Accordingly, we

affirm the district court order granting summary judgment to Kane.




                                           Entered for the Court


                                           Nancy L. Moritz
                                           Circuit Judge




                                             10
