Why it matters: Could the failure to be a “team player” be a pretextual reason to terminate a female employee? An unpublished decision from the 10th U.S. Circuit Court of Appeals answered the question in the affirmative, reversing summary judgment for an employer. A female sales manager said male employees were allowed to question and “butt heads” with superiors, but when she did it she was fired. Although a federal district court accepted the employer’s unwavering position that the plaintiff was not a team player, a divided federal appellate panel reversed the case. A dissenting member of the panel said summary judgment should have been upheld because the female employee’s approach of questioning superiors was different than her male coworkers, with no evidence that the men “came even close to [the plaintiff’s] critical, obnoxious, insulting, and accusatory behavior.”

Detailed Discussion

When Synerlink Corporation hired Stacey Potter in 2004, she was the company’s first female territory manager. The parties agreed that Potter quickly became one of Synerlink’s top salespeople and won several sales awards.

However, the parties disagreed about Potter’s role as a team player. Synerlink executives felt she could be too aggressive. When a new territory manager was hired, each of the others was expected to chip in some of their territory for the new guy. Potter pushed back. In a series of e-mails over several months, she argued that the company was “penaliz[ing]” her when it should not have hired a new manager in the first place.

She suggested other employees should give up more of their own territories, complained about salespeople, and wrote, “If I’m forced to waive a white flag to prove I’m a team player and help my fellow [territory manager], I will consider doing it.”

Potter was given the option to resign, but she refused, and Synerlink terminated her for not being a team player. A federal district court judge granted the employer summary judgment on Potter’s Title VII and state law sexual discrimination claims. The case went to trial on other claims, and a jury awarded her almost $50,000 in unpaid commissions. Both parties appealed.

Analyzing Potter’s Title VII discrimination claim, the 10th Circuit held that a jury should consider whether Synerlink fired her for failing to conform to stereotypical expectations for women by butting heads with management.

The “team player” rationale for her termination could be pretextual, the court said, because Synerlink treated Potter differently from male territory managers who expressed dissatisfaction with management. The panel considered testimony from two male counterparts who said they “butt[ed] heads,” “talk[ed] things out,” and “ask[ed] a lot of questions” when territory changes were announced.

Potter’s supervisor “actually invited [her] to share her concerns, but unlike the male [territory managers], he fired her when she did so,” the panel wrote. “Evidence of Synerlink’s disparate treatment of Ms. Potter relative to the male [territory managers] in responding to their expressed concerns about territory changes is sufficient to withstand summary judgment. A reasonable jury could conclude Ms. Potter’s expressions of concern were similar to [her male counterparts’] and that Synerlink’s rationale for firing her was pretextual.”

Unlike the dissent, the majority refused to compare the tone of the male territory managers to Potter’s e-mails, as that “involves weighing evidence, which is the jury’s role.” The court did note that Potter admitted she was unaware of anyone else having “the same type of conversation” she had with her superiors and that her supervisor testified: “Nobody ever came on as strong in writing as what Stacey did. . . . Nobody in the history of our company had ever come on that strong attacking so many people in our company.”

State law discrimination claims were similarly reversed, and the panel remanded the case for a new trial.

A dissenting opinion argued that the majority should have focused on a direct comparison between Potter’s behavior and that of her male counterparts in order to determine whether Synerlink’s rationale was truly pretextual. “[O]ur focus should be narrow, deciding whether there is a genuine factual dispute as to the only material fact of significance: whether her insubordinate and insulting conduct was of ‘comparable seriousness’ to that of her male counterparts, which was tolerated,” the dissent said.

Because the dissent found that “Potter’s expression of her opinions in her e-mails is a far cry from professional conversations regarding negotiations and shared concerns described as the approach taken by [the male territory managers],” the judge would have affirmed summary judgment. “The anti-discrimination statutes should provide protection, not preference,” he wrote. “Protected class members ought not to be insulated from the consequences of their intemperate behavior under the guise of fair and equal treatment.”

To read the decision in Potter v. Synerlink Corp., click here.