                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 28 2005
                           FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    AMY BANKS,

               Plaintiff-Appellant,

        v.                                               No. 04-3125
                                                 (D.C. No. 02-CV-4159-RDR)
    THE ARMED FORCES BANK;                                 (D. Kan.)
    DICKINSON FINANCIAL CORP.,                      (313 F. Supp. 2d 1095)

               Defendants-Appellees.




                            ORDER AND JUDGMENT           *




Before SEYMOUR , McCONNELL , and TYMKOVICH , Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Amy Banks challenges the district court’s grant of summary judgment to

Armed Forces Bank (AFB) in this employment discrimination case.    1
                                                                        We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The district court summarized the facts underlying this action in its

comprehensive memorandum and order.       See Banks v. Armed Forces Bank      , 313

F. Supp. 2d 1095, 1097-99 (D. Kan. 2004). For purposes of this appeal, the most

relevant facts are that an AFB human resources employee initially (and

erroneously) told Ms. Banks in early April 2002 that she could use intermittent

leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601         et seq. ,

to care for her newborn during the summer. Approximately two weeks later, AFB

informed her that its policy did not allow such use of FMLA leave. When

Ms. Banks stated that she had a problem, in that she had already arranged for

child care based on an intermittent working schedule and she could not obtain

full-time child care for the summer, AFB offered her the opportunity to work a

thirty-hour schedule instead of continuing at forty hours per week. AFB refused

to make the change seasonal, however, and it indicated that, if she chose the

thirty-hour schedule, it would be her permanent schedule. After considering her

options, Ms. Banks opted for the thirty-hour schedule. About five weeks after



1
      Ms. Banks has abandoned her appeal of the judgment in favor of Dickinson
Financial Corporation. Aplt. Br. at 2.

                                        -2-
starting that schedule, she resigned to take a full-time position with another

company.

       Ms. Banks contends that AFB violated Title VII, 42 U.S.C. § 2000e        et seq. ,

by constructively discharging her in retaliation for certain complaints of

discrimination. She argues that AFB’s failure to honor the initial representations

regarding the availability of intermittent FMLA leave and AFB’s making her

thirty-hour schedule a permanent change rather than a seasonal adjustment

constituted a constructive discharge. The district court held this claim precluded

because it was not included in the pretrial order.    Banks , 313 F. Supp. 2d at 1103.

Ms. Banks does not appeal this determination, and thus she has waived

consideration of this issue.   See Tran v. Trustees of State Colleges   , 355 F.3d

1263, 1266 (10th Cir. 2004).    2



       Ms. Banks next argues that AFB violated the FMLA by failing to provide

her intermittent leave to care for her child. Although neither the FMLA nor

AFB’s FMLA policy required AFB to offer Ms. Banks intermittent leave in these


2
 The district court further determined that, even if the Title VII retaliation claim
were preserved, it would be proper to grant summary judgment because, among
other reasons, AFB did not commit any “adverse employment actions” against
Ms. Banks, as required for a claim of retaliation.   Banks , 313 F. Supp. 2d at
1103. We find no error in this decision. As discussed below in connection with
Ms. Banks’ FMLA retaliation claim, Ms. Banks has neither shown that she was
treated differently than other employees with regard to intermittent leave nor that
her working conditions were so intolerable as to constitute a constructive
discharge.

                                             -3-
circumstances, 29 C.F.R. § 825.203(b); Aplee. Br. at 6-7; Aplt. App. at 63, she

contends the initial representations about the availability of leave equitably

estopped AFB from enforcing its policy against her. The district court disagreed.

       This court has not yet determined whether equitable estoppel applies in a

FMLA action. Other courts, however, have recognized that employers may be

equitably estopped from denying employees FMLA benefits under certain

circumstances.    See Duty v. Norton-Alcoa Proppants       , 293 F.3d 481, 493-94 (8th

Cir. 2002) (applying equitable estoppel where employer guaranteed employee

certain period of FMLA leave, and employee relied on the representation by not

returning to work until after end date designated by employer);      Kosakow v. New

Rochelle Radiology Assoc., P.C.      , 274 F.3d 706, 722-27 (2d Cir. 2001) (applying

equitable estoppel to issue of employee’s eligibility where employer did not notify

employee that she must work 1,250 hours to be FMLA-eligible and employee

could have worked the necessary hours before taking leave);        see also Woodford v.

Comm. Action of Greene County, Inc.        , 268 F.3d 51, 57 (2d Cir. 2001) (discussing,

in dicta, potential availability of equitable estoppel);   Dormeyer v. Comerica

Bank-Ill. , 223 F.3d 579, 582 (7th Cir. 2000) (same). In the circumstances of this

case, however, we are not persuaded the district court erred in refusing to apply

equitable estoppel to Ms. Banks’ FMLA claim, especially given that Ms. Banks

was correctly informed about AFB’s policy and her options well before the


                                              -4-
beginning of her requested leave.      Cf. Pharakhone v. Nissan N. Am., Inc.    , 324

F.3d 405, 408 (6th Cir. 2003) (“[Plaintiff’s] testimony demonstrates, at most, that

[his supervisor’s] silence led [plaintiff] to decline assistance that later turned out

to be necessary. . . . [T]he FMLA, in our opinion, was not designed to afford

relief in such a situation.”).

       Finally, Ms. Banks argues that AFB violated the FMLA by constructively

discharging her in retaliation for her request to take FMLA leave. To establish a

constructive discharge, Ms. Banks must show that AFB “‘made working

conditions so difficult that a reasonable person in the employee’s position would

feel compelled to resign.’”      See Sandoval v. City of Boulder   , 388 F.3d 1312, 1325

(10th Cir. 2004) (quoting     Sanchez v. Denver Pub. Sch. , 164 F.3d 527, 534 (10th

Cir. 1998)). “‘Essentially, a plaintiff must show that she had      no other choice but

to quit. The conditions of employment must be objectively intolerable; the

plaintiff’s subjective views of the situation are irrelevant.’”     Id. (quoting Sanchez ,

164 F.3d at 534). “If an employee resigns of her own free will, even as a result of

the employer’s actions, that employee will not be held to have been constructively

discharged.” Jeffries v. State of Kan. , 147 F.3d 1220, 1233 (10th Cir. 1998).

       As discussed above, neither the FMLA nor AFB’s FMLA policy required

AFB to grant Ms. Banks intermittent leave. Also, there is no indication that AFB

allowed other employees to take intermittent FMLA leave under similar


                                              -5-
circumstances. Aplt. App. at 63. The record does not show that AFB changed

Ms. Banks’ duties, responsibilities, or benefits in any significant manner other

than the reduction in hours. AFB gave Ms. Banks time to consider her options

and discuss them with her husband, and it did not require her to take the thirty-

hour schedule; if she had found adequate daycare, she could have continued with

her forty-hour schedule.   Id. at 67-68. We cannot conclude that offering Ms.

Banks the fully voluntary choice of continuing her forty-hour schedule or taking a

thirty-hour schedule, in order to accommodate her family’s needs, creates such

intolerable working conditions as to constitute a constructive discharge.

      The judgment of the district court is     AFFIRMED .

                                                     Entered for the Court

                                                     Stephanie K. Seymour
                                                     Circuit Judge




                                              -6-
