128 F.

3d 1351
13 IER Cases 684, 97 CJ C.A.R. 2448

Sarah YEAROUS; Tonya Crisman; Jonell Robinson; and

Chintamani Frahm, Plaintiffs-Appellees,
v.
NIOBRARA COUNTY MEMORIAL HOSPITAL, By and
Through its BOARD
OF TRUSTEES, Defendant-Appellant,
and
Vicki Winney, Defendant.
No. 96-8108.

United States Court of Appeals,

Tenth Circuit.
Oct. 21, 1997.
Rehearing Denied Nov. 18, 1997.

John D. Whitaker (James R. McCarty with him on the brief), Casper, WY,
for Plaintiffs-Appellees.
John G. Fenn (Michael K. Davis with him on the brief), Yonkee & Toner,
Sheridan, WY, for Defendant-Appellant.
Before BALDOCK, BRORBY, and BRISCOE, Circuit Judges.
BALDOCK, Circuit Judge.

Plaintiffs Tonya Crisman, Jonell Robinson, and Chintamani Frahm are

registered nurses. Plaintiff Sarah Yearous is a licensed practical nurse. All are
former employees of Defendant Niobrara County Memorial Hospital. Each
resigned their employment with Defendant in August 1995. They subsequently
brought this action alleging, among other things, that Defendant constructively
discharged them from their employment, and in so doing deprived them of
property without due process of law. See U.S. Const. amend. XIV, 1; 42
U.S.C. 1983. A jury returned a verdict for Plaintiffs and awarded them
damages totaling $877,637.00. Defendant appeals the district court's denial of

its motion for judgment as a matter of law claiming the evidence was
insufficient to support the jury's finding of constructive discharge. See
Fed.R.Civ.P. 50. Our jurisdiction arises under 28 U.S.C. 1291. Because we
conclude that the record is devoid of any evidence upon which a reasonable
jury could return a verdict for Plaintiffs under the controlling law, we reverse
the judgment of the district court and remand with instructions to enter
judgment in favor of Defendant.
Standard of Review
2

We review de novo the district court's denial of a motion for judgment as a

matter of law under Fed.R.Civ.P. 50. Wolfgang v. Mid-America Motorsports,
Inc., 111 F.3d 1515, 1522 (10th Cir.1997). The standards governing our review
are well established. We will reverse the denial of a Rule 50 motion only if the
evidence points but one way and is susceptible to no reasonable inferences
supporting the nonmoving party. Haines v. Fisher, 82 F.3d 1503, 1510 (10th
Cir.1996). "We do not weigh the evidence, pass on the credibility of witnesses,
or substitute our conclusions for that of the jury. However, we must enter
judgment as a matter of law in favor of the moving party if there is no legally
sufficient evidentiary basis with respect to a claim ... under the controlling law."
Mason v. Oklahoma Turnpike Authority, 115 F.3d 1442, 1450 (10th Cir.1997)
(internal quotations and ellipses omitted). Mindful of this standard, we turn to
the present appeal.

I.
3

Reviewing the facts in a light most favorable to the Plaintiffs, see Harolds
Stores, Inc. v. Dillard Dept. Stores, Inc., 82 F.3d 1533, 1546 (10th Cir.1996),
the record reveals that Niobrara County Memorial Hospital is a small rural
health care facility in Lusk, Wyoming. The facility consists of a hospital with
ten beds and a nursing home with thirty-six beds. The facility employs
approximately sixty individuals, twelve to fourteen of whom are nurses.
Ultimate responsibility for the operation of the facility rests with a six-member
board of trustees. A hospital administrator is responsible for the facility's daily
operations. A director of nursing supervises the facility's nursing staff.

In May 1995, a vacancy arose in the director of nursing position at the facility.
While the board conducted a search to fill the position, Plaintiffs Crisman and
Robinson helped perform the director's duties. Three individuals, including
Vicki Winney, applied for the position. Winney is a registered nurse who at the
time was employed in the nursing home portion of the facility. When one
applicant rejected an offer from the board and another withdrew her

application, Winney became the only remaining candidate for the position.
Both Crisman and Robinson, each of whom previously had served as temporary
directors of nursing at the facility, expressed reservations about Winney's
qualifications. Although the board knew she was inexperienced and perhaps
unqualified, on July 10, 1995, Winney became the director of nursing at
Niobrara County Memorial Hospital. On July 15, the hospital administrator and
Winney's immediate supervisor, Jeff Struble, left on a three-week vacation.
Struble left Winney in charge of the nursing staff.
5

Problems arose on Winney's second full day as director. On July 12, 1995,
Patient A arrived from the Wyoming Medical Center in Casper. Contrary to
established procedure, staff admitted Patient A into the nursing home side of
the facility without a doctor's order. Subsequently, a staff doctor ordered Patient
A transferred to swing bed status, i.e., a level of intermediate care between full
hospitalization and nursing care on the hospital side of the facility. Winney and
Plaintiff Robinson disagreed about how to document Patient A's transfer to
swing bed status. Because no record of Patient A's transfer from Casper to the
nursing home existed, Winney suggested charting Patient A into swing bed
status directly from Casper. Robinson, however, insisted on charting Patient A
in from the nursing home. Although Robinson testified that she believed
Winney was asking her to falsify Patient A's records, Robinson completed the
patient's transfer chart as she deemed proper and suffered no adverse
consequences as a result.

Another problem arose on Winney's fifth full day as director. On July 17, 1995,
a patient suffering from terminal cancer had a seizure. Winney and Plaintiff
Yearous were present when the seizure occurred. Yearous asked Winney to
obtain a doctor's order for medication to stop the seizure. Winney attempted to
contact a doctor but was unable to do so. When Winney returned to the room,
the patient's seizure had stopped. Consequently, Winney told Yearous that
immediate medication was unnecessary. Yearous subsequently obtained a
doctor's order for medication with Robinson's assistance. Yearous testified that
she believed Winney was jeopardizing patient care. Yearous, however, did not
file an incident report with Winney's superiors.

Problems continued when on July 26, 1995, Patient B arrived from United
Medical Center in Cheyenne. Patient B had a wound on his left lower leg which
required irrigation by means of a catheter placed inside the wound. Winney and
Plaintiff Frahm disagreed about how to perform the patient's dressing change.
Winney believed the change need only be completed in a "clean," rather than a
"sterile" manner. When she witnessed Frahm performing the dressing change in
a sterile manner, a heated discussion ensued in front of the patient. Frahm

suggested that they continue their discussion outside the patient's room. Their
continued discussion resulted in an impasse. Frahm continued to perform the
dressing change in the manner she felt appropriate without ramification.
8

Perhaps the most serious allegations against Winney concerned Patient C. On

July 25, 1995, hospital staff admitted Patient C as an acute care patient with a
skin disorder and confusion. On July 27, 1995, the attending physician ordered
Patient C transferred to swing bed status because no nursing home beds were
available. Winney's duties included utilization review for compliance with
Medicare classifications and qualifications. Winney recognized that Patient C
did not qualify for Medicare reimbursement because he had not spent the
required three prior nights in acute care. According to Plaintiffs Robinson and
Frahm, Winney suggested that the dates in Patient C's records be changed to
qualify him for Medicare. On cross-examination, however, Robinson testified
as follows:

9Q. And Ms. Winney comes up and looks at Patient C's chart; is that correct?
A. Eventually she got his chart, yes.
10
Q. And she's flipping through it as the three of you were there; is that right?
11
A. She opened the chart. I didn't see the section she opened it to.
12
Q. She opened the chart?
13
A. Yeah. Yes.
14
15 And then your testimony is she said, "All we have to do is change these dates,"
Q.
correct?
A. Correct.
16
17 And Chin Frahm immediately said, "I'm not changing anything," or words to that
Q.
effect, right?
A. That's correct.
18
19 And Ms. Winney immediately replied, "No, no, no. I'm not asking you to change
Q.
anything"; isn't that true?
A. That wasn't my interpretation of what she said.
20
Q. Well, I'm not talking about interpreting what she said. I'm talking about the
21

words she spoke. She said, "No, no, no. I'm not asking you to change anything,"
didn't she?
A. She said, "No, no, no. I'm not asking you to change anything."
22
23 Right. In fact, if there were going to be any change in Mr. C's status, that would
Q.
require that Dr. Hawley change something; isn't that true?
A. I don't know from that point what-24
Q. Well-25
A. --she said.
26
Q. We're not talking about what she said.
27
A. Or meant. I don't know what she meant.
28
29 Well, I'm not talking about what she said or what she meant. I'm talking about
Q.
what was required as a matter of policy by Medicare. As a matter of fact, it would
require a doctor, Dr. Hawley, to change the patient's status, isn't that right, from
swing bed to acute, or acute to swing bed?
A. It requires a doctor's signature, yes.
30
31

Aplt.App. Vol. II at 452. Frahm testified to essentially the same facts on direct
examination. See Aplt.App. Vol. II at 534. In the end, Patient C's records
remained unaltered and he failed to qualify for Medicare.

32

Plaintiff Crisman was on vacation the entire month of July. She testified,
however, to two problems she experienced with Winney upon her return in
August. The first concerned an attending physician's medication order.
Confusion arose as to whether the physician wished to change the order. When
the physician was unavailable, Winney instructed Crisman to contact the doctor
on call for instructions. When Winney informed the attending physician of the
situation he became upset and told Winney the medication order was part of the
patient's file. Winney then asked Crisman what she didn't understand about the
physician's order. Crisman testified that she did not feel Winney was
supportive. The patient ultimately received the proper medication and the
matter passed without incident.

33

The second problem between Winney and Crisman involved an individual with
high blood pressure. The individual routinely came to the hospital to have his

blood pressure checked. Two days in succession Crisman checked the patient's
blood pressure. Both times Crisman informed him that his blood pressure was
quite high and he should remain at the hospital while she contacted a doctor.
Both times he refused and left. Crisman submitted reports of the incidents.
Subsequently, Crisman became upset when she learned that Winney was
reviewing the individual's medical file. After reviewing the file, Winney
concluded that Crisman had done nothing improper.
34

During Administrator Struble's vacation, Plaintiffs Robinson and Frahm spoke

with Lori Fields, the facility's director of finance, about these and other
problems, namely staffing concerns, that all four Plaintiffs had with Winney.
Fields in turn related Plaintiffs concerns to board vice-president Kenny
DeGering. DeGering suggested Plaintiffs' concerns could wait until Struble
returned from vacation. Neither Plaintiffs nor Fields ever spoke to Winney
directly. On August 7, 1995, Struble returned from vacation. That same day,
Plaintiffs Robinson, Frahm, and Crisman submitted complaints to Struble
regarding Winney. Only then did Winney learn that the Plaintiffs were upset
with her performance. Plaintiff Yearous did not submit a complaint. Before
Struble could complete his investigation, on August 9, 1995, all four Plaintiffs
submitted their resignations and gave two weeks' notice. Plaintiffs chose to
forego filing a grievance with the hospital's personnel committee.

35

To appease Plaintiffs, Struble discharged Winney the next day, August 10,
1995. Struble discharged Winney not because of any confirmed wrongdoing,
but because of the turmoil within the facility and generally poor morale of the
staff. That same evening, Winney met with the board of trustees at her request
and explained her position. The board met with Struble the following day.
When Struble informed the board that he had found nothing to substantiate
Plaintiffs' allegations against Winney, the board directed him to reinstate her.

36

The board also instructed Struble to ask Plaintiffs to rescind their resignations
and remain with the hospital while trying to resolve their differences with
Winney. Despite his persistent pleas, Plaintiffs informed Struble that they
would not rescind their resignations so long as Winney remained director of
nursing. Winney personally asked Plaintiff Yearous to stay but to no avail. All
four Plaintiffs had left the hospital by August 21, 1995, less than two months
after Winney's appointment as director of nursing. Plaintiffs requested an
informal hearing before less than the entire board, but the board offered them
only a formal hearing before the entire board at its regularly scheduled meeting
in August. Plaintiffs declined the offer and no hearing occurred. On September
7, 1995, Plaintiff Frahm unsuccessfully applied for the director's position
knowing that Winney remained in the position. This lawsuit followed.

II.
37

Over a decade ago we held that an employee's constructive discharge from a

position in which the employee has a protectable property interest may be
actionable under 42 U.S.C. 1983. Bailey v. Kirk, 777 F.2d 567, 579 (10th
Cir.1985). To determine whether Plaintiffs in this case have a viable cause of
action under 1983, we first ask whether Defendant deprived Plaintiffs of a
protected property interest. Plaintiffs were entitled to procedural due process,
i.e., a hearing before the hospital's board of trustees, only if Defendant deprived
them of property. Defendant acknowledges that Plaintiffs had a protected
property interest in continued employment with the hospital by way of an
implied contract. See Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077,
48 L.Ed.2d 684 (1976) (property interest in employment may be created by an
implied contract). Defendant submits, however, that Plaintiffs were not
constructively discharged; rather Plaintiffs voluntarily resigned. If Plaintiffs
resigned of their own free will, even as a result of Defendant's actions, then
they voluntarily relinquished their property interests and, thus, Defendant did
not deprive them of property without due process of law. See Parker v. Board of
Regents of Tulsa Jr. College, 981 F.2d 1159, 1161-62 (10th Cir.1992).

38

To determine whether a jury question exists as to the voluntariness of Plaintiffs'

respective resignations, we consider the totality of the circumstances under an
objective standard. See Parker, 981 F.2d at 1162; accord Hargray v. City of
Hallandale, 57 F.3d 1560, 1570 (11th Cir.1995). At the outset, we must
determine if Plaintiffs have established that their resignations were involuntary
based upon a reasonable person test. See Maez v. Mountain States Telephone
and Telegraph, Inc., 54 F.3d 1488, 1502 (10th Cir.1995). Among the factors we
consider in determining the voluntariness of an employee's resignation are "(1)
whether the employee was given some alternative to resignation; (2) whether
the employee understood the nature of the choice [s]he was given; (3) whether
the employee was given a reasonable time in which to choose; and (4) whether
[s]he was permitted to select the effective date of resignation." Parker, 981 F.2d
at 1162; accord Lenz v. Dewey, 64 F.3d 547, 552 (10th Cir.1995); Cacy v. City
of Chickasha, 124 F.3d 216, 1997 WL 537864 at * 6 (10th Cir.1997)
(unpublished).

39

By comparison, "[a] resignation will be involuntary and coerced when the

totality of the circumstances indicate the employee did not have the opportunity
to make a free choice." Parker, 981 F.2d at 1162. Constructive discharge occurs
when a reasonable person in the employee's position would view the working
conditions as intolerable. That is to say the working conditions, when viewed
objectively, must be so difficult that a reasonable person would feel compelled

to resign. Woodward v. City of Worland, 977 F.2d 1392, 1401 (10th Cir.1992).
A plaintiff's subjective views of the situation are irrelevant. Irving v. Dubuque
Packing Co., 689 F.2d 170, 172 (10th Cir.1982); accord Clowes v. Allegheny
Valley Hospital, 991 F.2d 1159, 1162 (3d Cir.1993). Essentially, a plaintiff
must show that she had " 'no other choice but to quit.' " Woodward, 977 F.2d at
1401 (quoting Irving, 689 F.2d at 172) (emphasis in original); accord Peterson
v. Sweetwater County School Dist. No. 1, 114 F.3d 1198, 1997 WL 312420 at
* 2 (10th Cir.1997) (unpublished).
III.
40

According to Plaintiffs, they had no choice but to end their employment

relationship with Niobrara County Memorial Hospital so long as Winney
remained director of nursing. Plaintiffs faced the dilemma of disobeying their
superior with its accompanying consequences, or following her orders which
they believed were at best unethical and at worst unlawful. Plaintiffs claim
Winney (1) compromised their ethics, (2) requested them to commit Medicare
fraud, (3) jeopardized patient care, and (4) violated internal policies and
procedures. Plaintiffs testified that Winney's conduct made them fear for their
professional reputations and licenses, and an expert endorsed their concerns.

41

To be sure, this case exposes numerous instances of questionable judgment on

behalf of all involved. The board exercised questionable judgment when it hired
Winney as director of nursing. Administrator Struble exercised questionable
judgment when he left on a three-week vacation four days after Winney
assumed her duties. Winney exercised questionable judgment in fulfilling her
duties as director. Plaintiffs exercised questionable judgment in taking an
"either she goes or we go" approach to the problem. But a series of questionable
judgments leading to difficult working conditions does not alone support a
claim of constructive discharge or unconstitutional misconduct.

42

The question is not whether working conditions at the facility were difficult or
unpleasant. Nor is the question whether Winney was incompetent or unethical.
Rather, the question at this stage is whether Plaintiffs, at the time of their
respective resignations, had the opportunity to make a free choice regarding
their employment relationship with Niobrara County Memorial Hospital. See
Parker, 981 F.2d at 1162. On this record, we conclude as a matter of law that
they did. Viewing the facts objectively and considering the totality of the
circumstances as the law requires, we believe no reasonable jury could
conclude that Plaintiffs were constructively discharged.

43

Applying the four factors we have considered in prior cases to determine the

voluntariness of an employee's resignation, see Lenz, 64 F.3d 547, we first note

that the board gave Plaintiffs an alternative to resignation, namely continuing to
work and attempting in good faith to resolve their problems with Winney
through internal procedures. Second, the facts illustrate that Plaintiffs
understood quite well the choice the board gave them. Third, the board gave
Plaintiffs an indefinite time period in which to choose by asking them to rescind
their resignations and remain with the hospital. Finally, because the board did
not want Plaintiffs to resign, Plaintiffs had complete control over the effective
date of their resignations.
44

Other factors also support our conclusion. The most serious allegations against
Winney concerned her apparent desire to have Plaintiffs Robinson and Frahm
alter the medical records of Patients A and C, respectively. The record is
equivocal, however, as to what Winney was actually suggesting. Both Robinson
and Frahm testified that when they confronted Winney, she stated she was not
asking them to change anything. In the end, Robinson and Frahm proceeded as
they deemed appropriate, nobody altered the patients' records, and Winney
never took any personnel action against the two Plaintiffs. The facts at most
suggest that Winney, who was unqualified to be director of nursing, asked
Plaintiffs to do things which they believed were unethical and which they
refused to do without repercussion.

45

Similarly, the other problems to which Plaintiffs testified, while perhaps cause
for concern, were not so serious as to give a reasonable person no other choice
but to resign. The problem that Plaintiff Yearous experienced with the seizure
of the terminally-ill patient, that Plaintiff Frahm experienced with the dressing
change of Patient B, and that Plaintiff Crisman experienced with the physician's
medication order and the individual's high blood pressure, when considered in
light of the entire record, are insufficient to support a claim of constructive
discharge.

46

The time factor also supports our conclusion. The time frame in which the
problems occurred leading to Plaintiffs' resignations was brief. See Tidwell v.
Meyer's Bakeries, Inc., 93 F.3d 490, 494 (8th Cir.1996) ("An employee who
quits without giving his employer a reasonable chance to work out a problem
has not been constructively discharged."). Winney began serving as director of
nursing on July 12, 1995. Less than one month later on August 9, 1995, and
only two days after Struble had returned from a three week vacation, Plaintiffs'
submitted their resignations. Notably, Plaintiff Crisman had been on vacation
the entire month of July and had worked under Winney only a week before
submitting her resignation. In their attempt to get Winney discharged, which
initially was successful but ultimately failed, Plaintiffs unreasonably refused to

explore any option short of resignation.

47

The facts when viewed in a light most favorable to Plaintiffs and under the
controlling law establish that Plaintiffs' resignations were voluntary, albeit as a
result of unpleasant and difficult circumstances. Accordingly, Niobrara County
Memorial Hospital did not deprive Plaintiffs of a protected property interest in
their employment without due process of law. As we have concluded Plaintiffs'
due process claims fail, Plaintiffs' related contract claims fail for the same
reasons. The judgment of the district court is reversed and the cause remanded
for the entry of judgment in favor of Defendant pursuant to Fed.R.Civ.P. 50.1

48

REVERSED AND REMANDED.

Plaintiffs' motion to file a reply brief to Defendant's reply brief is denied.

Defendant's motion to strike Plaintiffs' motion to file a reply brief is denied as
moot