                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         DEC 16 2002
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 DONNA MITANI,

               Plaintiff - Appellant,

          v.                                           No. 01-4190
                                                 (D.C. No. 2:00-CV-23-C)
 IHC HEALTH SERVICES, INC.,                             (D. Utah)
 d/b/a Utah Valley Regional Medical
 Center,

               Defendant - Appellee.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, HARTZ, and O’BRIEN, Circuit Judges.



I. Background

      Plaintiff-Appellant Donna Mitani filed this suit against her former

employer, Defendant-Appellee IHC Health Services, Inc., d/b/a Utah Valley

Regional Medical Center (“IHC”), in the United States District Court for the

District of Utah. Mitani alleged sex discrimination and retaliation under Title



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
VII, 42 U.S.C. § 2000e, et seq., (“Title VII”). The district court granted summary

judgment in favor of IHC on all claims. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and AFFIRM.

      Mitani was employed in IHC’s South Urban Region, as the manager of

Environmental Services and Laundry/Linen. In the Spring of 1998, Chris Coons –

the Chief Operating Officer of the South Urban IHC – decided to create a new

Operations Officer position. The person hired to fill this position was to devise a

“hotel model” of hospitality services at the center. In March 1998, Coons hired

Marilyn Thorne for the position, and Thorne began creating the hotel-model

hospitality program.

      Later that year, in August 1998, Coons was at the American Fork public

swimming pool with his children when Mitani arrived to swim with her three

children. Mitani was wearing a bikini. Coons and Mitani did not speak to each

other, and this offended Mitani. She believed that Coons found her choice of

swimming apparel objectionable. Mitani had worn the same bikini to IHC

swimming parties at Provo’s Seven Peaks Water Park where male and female IHC

employees wore various types of swimming apparel.

      Approximately five days after the incident at the pool, Mitani alleges that

Thorne approached her and said that she should not wear a bikini at a public pool.

The next day, Mitani contacted the Utah Anti-Discrimination and Labor Division


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(“UALD”) for information about how to file a discrimination claim against her

employer. Mitani alleges that after the UALD inquiry, Thorne approached her

again, this time to tell her that she should forget about their earlier conversation

regarding Mitani’s choice of swimwear.

      Approximately six months later, in February 1999, Thorne created a new

position – Regional Hospitality Manager – to facilitate the creation of a more

hotel-like atmosphere in the hospital. The new position was designed to

consolidate and upgrade all of the hospitality-related aspects of the hospital,

thereby creating a more welcoming environment. The Regional Hospitality

Manager would be responsible for the duties of Mitani’s current position, as well

as new responsibilities.

      Thorne interviewed several candidates, including Mitani, and ultimately

hired Gregory Parrott for the position. Parrott holds degrees in Culinary Arts and

Hospitality Management, as well as a bachelors degree in Hotel Administration.

He was employed for five years at the Mirage Hotel in Las Vegas and eighteen

months at the Salt Lake City Courtyard Marriott.

      Mitani does not hold a bachelors degree, one of the prerequisites set forth

for the position of Regional Hospitality Manager. Mitani applied and interviewed

for the new position, but she withdrew her application after the interview. Mitani

alleges that Thorne told her after the interview that she would not be hired for the


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new position.

      Lane Pederson – an IHC Human Resources employee – encouraged Mitani

to stay in her present position until Parrott arrived in May 1999. Mitani quit,

however, on April 16, 1999. She filed a discrimination suit with UALD on July

26, 1999. The record contains no evidence that Mitani told Thorne or Coons prior

to her departure that she had contacted UALD. There is evidence, however, that

Mitani told other IHC employees – including Pederson – about her inquiry to

UALD.

                                    II. Discussion

                               A. Standard of Review

      “We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.” Simms v. Okla. ex

rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th

Cir. 1999). Summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” F ED . R. C IV . P. 56(c).

We examine the factual record and draw all reasonable inferences therefrom in

the light most favorable to the nonmoving party. Simms, 165 F.3d at 1326.

                                 B. Title VII Claims


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      Under Title VII, an employer may not discriminate against an employee

with respect to the terms or privileges of employment because of the employee’s

sex. In analyzing sex discrimination and retaliation claims, we apply    the three-

part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-56 (1981) (sex

discrimination); Penry v. Fed. Home Loan Bank, 155 F.3d 1257, 1263-64 (10th

Cir. 1998) (retaliation).

      Under this framework, the plaintiff must first establish a prima facie case

of discrimination. McDonnell Douglas, 411 U.S. at 802. If the plaintiff succeeds

in proving her prima facie case, the employer must come forth with a legitimate

and facially nondiscriminatory reason for its employment decision. Id. Finally, if

the employer satisfies this burden, the plaintiff must demonstrate that the

defendant’s proffered reasons were a pretext for discrimination. Id. at 804. “The

ultimate burden of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the plaintiff.”

Burdine, 450 U.S. at 253 (citations omitted).

      When a case comes before us at the summary-judgment stage, the plaintiff

survives the motion by “advanc[ing] evidence establishing a prima facie case and

evidence upon which a factfinder could conclude that the defendant’s alleged

nondiscriminatory reasons for the employment decisions are pretextual.” Ingels v.


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Thiokol Corp., 42 F.3d 616, 622 (10th Cir. 1994). We proceed to consider

Mitani’s sex discrimination and retaliation claims under this standard.

                               1. Sex Discrimination

                            a. Mitani’s prima facie case

      Under McDonnell Douglas, Mitani bears the initial burden of establishing a

prima facie case of sex discrimination by a preponderance of the evidence. To

satisfy this burden, Mitani must show that “(1) she is a member of the class

protected by the statute; (2) she suffered an adverse employment action; (3) she

was qualified for the position at issue; and (4) she was treated less favorably than

others not in the protected class.” Sanchez v. Denver Pub. Sch., 164 F.3d 527,

531 (10th Cir. 1998) (citations omitted).

      Mitani has not met this burden. She has not offered sufficient evidence

from which a jury could conclude that she suffered an adverse employment

decision. Nor is there sufficient evidence for a jury to conclude that Mitani was

qualified for the position at issue. Accordingly, we hold that the district court

properly granted IHC’s motion for summary judgment on Mitani’s sex

discrimination claim.

                          (1) Adverse employment action

      “Although the Tenth Circuit liberally defines an ‘adverse employment



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action,’ its existence is determined on a case by case basis and does not extend to

‘a mere inconvenience or an alteration of job responsibilities.’” Heno v.

Sprint/United Mgmt. Co., 208 F.3d 847, 857 (10th Cir. 2000) (quoting Sanchez,

164 F.3d at 532). An employer’s “[r]etaliatory conduct other than discharge or

refusal to rehire is . . . proscribed by Title VII only if it alters the employee’s

‘compensation, terms, conditions, or privileges of employment,’or ‘adversely

affect[s] his [or her] status as an employee.’” Sanchez, 164 F.3d at 533 (citations

omitted).

      Mitani suffered no adverse employment decision. First, IHC did not

actually discharge Mitani. At the time Mitani chose to quit, she was working in

the same job, for the same pay, with the same benefits. Mitani offers no evidence

indicating that IHC would not have offered her another job at the same level of

compensation after IHC hired Parrott for the new position of Regional Hospitality

Manager. In fact, IHC told Mitani that there would likely be a position for her

following the restructuring.

      Second, IHC did not constructively terminate Mitani when IHC created the

position of Regional Hospitality Manager. To support a constructive discharge

claim under Title VII, a plaintiff must produce evidence sufficient to demonstrate

that “‘the employer by its illegal discriminatory acts has made working conditions

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


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viewed her working condition as intolerable.’” Sanchez, 164 F.3d at 534. The

standard is an objective one; thus, an employee’s subjective feelings or beliefs are

irrelevant. Heno, 208 F.3d at 858. “‘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

[suffered an adverse employment decision].’” Id. (citation omitted). In a

constructive-discharge claim, “[e]ssentially, a plaintiff must show that she had

‘no other choice but to quit.’” Sanchez, 164 F.3d at 534 (citation and internal

quotation marks omitted) (emphasis in original).

      IHC told Mitani that she could remain in her position until Parrott started

work and that there would likely be a position for her after the restructuring. But

rather than wait and see whether a new job would be made available, Mitani chose

to quit. Because there is no evidence that she suffered an adverse employment

decision, Mitani cannot establish her prima facie case.

   (2) Mitani’s qualifications for the position of Regional Hospitality Manager

      IHC eliminated Mitani’s position and created a new position – Regional

Hospitality Manager – in an effort to create a more “hotel-like” environment at

the hospital. The job description for the new position required a bachelors

degree. Mitani, by her own admission, did not have a bachelors degree.

      The degree requirement was not the only difference between Mitani’s

position and the new position. IHC created the new position in an effort to

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provide the hospital customers with a “more hotel-like” environment. Unlike

Parrot – the person ultimately hired for the position – Mitani had no experience

relevant to the performance of such duties. Parrott testified that he spends sixty

percent of his time performing hospitality-related functions. This is consistent

with IHC’s shift in focus to a more “hotel-like” atmosphere at the hospital and

indicates a substantial difference between Parrot’s job duties under the new

structure and Mitani’s former job duties.

      Despite this shift in focus, Mitani claims that her previous experience with

IHC qualified her for the new position. An employee’s opinions about her own

qualifications, however, do not give rise to a material factual dispute. See

Burlington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir. 1999). Even

if we conclude that IHC misjudged Mitani’s qualifications, such evidence would

not preclude summary judgment. See id. “The relevant inquiry is not whether

[IHC’s] proffered reasons were wise, fair or correct, but whether [IHC] honestly

believed those reasons and acted in good faith upon those beliefs.” Id. (citation

omitted).

      In sum, Mitani failed to demonstrate that she was qualified for the new

position of Regional Hospitality Manager. She likewise failed to show that IHC

acted in bad faith in creating the new position. Thus, Mitani failed to establish

her prima facie case under the McDonnell Douglas test.


                                         -9-
                                  b. Conclusion

      Based on the above, we conclude that the district court properly granted

IHC’s motion for summary judgment on Mitani’s sex discrimination claim under

Title VII.

                             2. Retaliatory Discharge

      Mitani next contends that IHC retaliated against her when they created the

Regional Hospitality Manager position with a bachelors degree requirement. We

disagree.

      Under Title VII, an employer may not discriminate against an employee in

retaliation for the employee’s opposition to unlawful 1 employment practices. See

42 U.S.C. § 2000e-3(a). Title VII provides in pertinent part:

      It shall be an unlawful employment practice for an employer to
      discriminate against any of his employees . . . because [the employee]
      has opposed any practice made an unlawful employment practice by
      this subchapter, or because he has made a charge, testified, assisted, or
      participated in any manner in an investigation, proceeding, or hearing
      under this subchapter.


Id. (emphasis added).



      1
        We note that Mitani can succeed in her retaliation case, even if IHC did
not in fact act unlawfully. It is well settled that a violation of the retaliation
provision can be found whether or not the challenged practice is ultimately found
unlawful. Love v. Re/Max of America, Inc., 738 F.2d 383, 385 (10th Cir. 1984).


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      In order to establish a prima facie case of retaliation, Mitani must establish

that (1) she engaged in protected opposition to Title VII discrimination or

participated in a Title VII proceeding, 2 (2) adverse employment action was taken

against her subsequent to or contemporaneously with the protected activity, and

(3) a causal connection exists between the protected activity and the adverse

employment action. Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1381 (10th Cir.

1994). “To prevail on a retaliatory discharge claim, a plaintiff must establish that

the decision to terminate her resulted from retaliatory animus.” Medlock v. Ortho

Biotech, Inc., 164 F.3d 545, 549 (10th Cir. 1999).

      Mitani’s retaliation claim suffers from the same fatal flaw as does her sex

discrimination claim, namely, she has failed to demonstrate that she suffered an

adverse employment decision.    Thus, Mitani cannot meet her burden of

establishing the elements of her prima facie case.

                                  III. Conclusion

      For the reasons set forth above, we AFFIRM the entry of summary

judgment for the defendant on the plaintiff's Title VII sex discrimination and




      2
       Under the first element, we limit our consideration to Mitani’s informal
inquiry to the UALD on August 19, 1998. Mitani’s subsequent filing of a formal
charge with the UALD cannot form the basis for her retaliation claim because her
job had already been restructured when she filed the formal charge.

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retaliatory discharge claims.




                                ENTERED FOR THE COURT,


                                Deanell Reece Tacha
                                Chief Circuit Judge




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