Bloomberg Law
Nov. 15, 2022, 10:30 AM

Former Hospital Worker Tees Up Retaliation Test at Tenth Circuit

Khorri Atkinson
Khorri Atkinson
Senior Labor & Employment Reporter

A federal appeals court in Denver will consider what threshold a former nursing assistant must reach to prove that a two-week quit-or-be-fired ultimatum following her internal sexual harassment complaint amounts to retaliation.

Counsel for former Heartland Rehabilitation Hospital LLC employee Tracie Frank will urge the US Court of Appeals for the Tenth Circuit at oral argument Tuesday to revive a lawsuit dismissed earlier this year. Frank maintained that Judge Holly L. Teeter of the US District Court for the District of Kansas applied the wrong legal test to conclude that she failed to allege an actionable retaliation claim.

The US Equal Employment Opportunity Commission, which has been allowed to participate in oral argument to support Frank, will also argue that Teeter should have used the US Supreme Court’s standard governing the material adversity requirement applicable to retaliation claims when ruling on the matter.

Teeter ruled in February that Frank failed to show that Heartland retaliated against her when it told her to quit or be fired after she complained that a male co-worker was making unwanted sexual advances toward her. Frank was already planning to find a new job outside the company, so the two-week ultimatum didn’t qualify as an adverse employment action to keep the case alive, Teeter said.

What’s Actionable?

Frank alleged that Heartland violated Title VII of the 1964 Civil Rights Act by forcing her out of her job prematurely. Before the complaint, Frank was struggling with her supervisor’s managerial style, and both agreed that she would stay on until she found another job outside the company, the lawsuit, filed in October 2020, said.

Frank and the EEOC told the Tenth Circuit in separate briefs that Teeter erroneously invoked the appeals court’s 2012 holding in Daniels v. United Parcel Service Inc. in requiring her to demonstrate an adverse employment action, defined as a significant change in employment status or a decision that caused a significant change in benefits.

This showing is a standard for a discrimination claim, not retaliation, they said.

The correct standard for this case was opined six years earlier in the Supreme Court’s Burlington Northern & Santa Fe Railway Co. v. White ruling, which said employers can be liable for conduct that would discourage workers from reporting bias or retaliatory harassment claims.

“Rather than asking whether Heartland’s allegedly retaliatory actions effected a significant change—or any change—in Frank’s employment status or benefits, the district court should have asked only whether they could have deterred a reasonable employee in Frank’s position from making a harassment claim,” the EEOC’s brief said. “An employer’s abrupt demand that an employee quit within fourteen days or else be terminated could well dissuade a reasonable worker from complaining of sexual harassment.”

Frank, who made similar arguments, is also asking the appeals court to revive her hostile work environment claim, which the EEOC’s brief didn’t address.

Frank argued the district court improperly tossed this claim by concluding, in part, that the male co-worker’s “daily staring” and comments about Frank’s appearance and breasts that occurred over the course of four months were “mere offensive utterances” and not sufficient to prove severe or pervasive harassment for a hostile work environment claim.

Heartland’s response brief insisted the district court got it right because the company was merely “hurrying” the departure of an employee who had already announced her departure, which doesn’t constitute a materially adverse employment action.

And “not all of the comments” made by the co-worker at issue were “even obviously offensive in context” to sufficiently support a hostile work environment claim, the company said.

Counsel for Frank and Heartland didn’t reply to requests for further comment about the case.

Baldwin & Vernon represents Frank. Stinson LLP represents Heartland.

The case is Frank v. Heartland Rehab. Hosp., LLC, 10th Cir., No. 22-03031, oral argument 11/15/22.

To contact the reporter on this story: Khorri Atkinson in Washington at

To contact the editor responsible for this story: Genevieve Douglas at; Rebekah Mintzer at