Robbins v. Jefferson County School District R-1

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 5 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

FRAN ROBBINS,

Plaintiff-Appellant,
vs. No. 98-1226

JEFFERSON COUNTY SCHOOL
DISTRICT R-1, WAYNE CARLE,
HOWARD CORNELL, SCOTT
WELLS, JOHN DUNAWAY,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 96-D-2958)

Daniel F. Lynch, Denver, Colorado, for Plaintiff-Appellant.

Christopher M. Leh (Alexander Halpern with him on the briefs), Caplan and
Earnest LLC, Boulder, Colorado, for Defendants-Appellees.

Before ANDERSON, TACHA, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellant Fran Robbins appeals from the district court’s grant of

summary judgment for Defendant-Appellee Jefferson County School District R-1
on her Title VII retaliatory discharge claim and its award of attorney fees to

individual Defendants-Appellees Wayne Carle, Howard Cornell, Scott Wells and

John Dunaway pursuant to Colo. Rev. Stat. § 24-10-110(5)(c). She claims that

the district court erred in granting summary judgment because (1) disputed issues

of material fact exist regarding whether she behaved in an insubordinate manner

or was punished simply for pursuing employment grievances; (2) as a matter of

law, Title VII protects her pursuit of grievances if done in good faith; (3) the

district court should have considered events prior to March 3, 1994 on a

continuing violation theory. Ms. Robbins also challenges the award of attorney

fees to the individual defendants, arguing that a federal district court is not a

“court of [the] state” of Colorado under Colo. Rev. Stat. § 24-10-119. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Background

Defendant Jefferson County School District R-1 (“School District”)

employed Ms. Robbins as a secretary from 1982 to 1995. She worked in the

Security Division and, in early 1993, reported to Defendant Wells.

In February 1993, Ms. Robbins became upset about the posting of signs in

the men’s and women’s restrooms prohibiting the flushing of tampons. She

specifically objected to the presence of the sign in the men’s room and

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complained to Mr. Wells about both the sign, which she believed created a hostile

work environment, and another employee, Ruann Keith, who had some

responsibility for posting it. The sign was removed in May 1993.

In July 1993, Ms. Robbins complained to Defendant Dunaway about her

working relationship with Mr. Wells and Ms. Keith. Mr. Dunaway responded by

arranging for Ms. Robbins to report directly to Ms. Keith. Ms. Robbins was

placed on administrative leave in September 1993 during an investigation of the

unauthorized release of Security Division documents. She protested this action.

On October 20, 1993, she filed an EEOC complaint, alleging gender

discrimination. She claimed that the administrative leave and an earlier reduction

in her secretarial assignments constituted retaliation for her complaint about the

tampon sign and further alleged that the sign created an offensive work

environment. Ms. Robbins returned to work in January 1994 under a new

supervisor, Defendant Cornell, and on March 16, 1994, she voluntarily withdrew

her EEOC complaint. See Aplt. App. at 263-64.

In July 1994, she testified adversely to the School District in an arbitration

hearing regarding the termination of another School District employee who had

filed an EEOC complaint. The following month, Mr. Cornell placed Ms. Keith in

charge of the Security Division while he attended a five-day conference. Ms.

Robbins wrote a memorandum in which she complained about this temporary

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grant of authority to Ms. Keith, and Mr. Cornell responded with a Memorandum

of Caution, reprimanding Ms. Robbins for challenging his authority.

Mr. Dunaway referred to the Memorandum of Caution in a written refusal

to consider Ms. Robbins’ application to become his secretary. Ms. Robbins then

filed a union grievance, protesting this adverse employment decision. Don

Oatman, who succeeded Defendant Carle as assistant superintendent, denied the

grievance.

Ms. Robbins then filed a second complaint with the EEOC on December

28, 1994. She also sent complaint letters to Mr. Oatman, Mr. Cornell, and

members of the School District’s Board of Education during March and April

1995. In these documents, she explicitly accused various School District officials

of bias, untrustworthiness, and retaliatory conduct.

On May 1, 1995, Mr. Dunaway suspended Ms. Robbins for three days

without pay, ostensibly for disrupting the operations of the School District. That

same month, she applied for a position as secretary to the School District’s

Employee Assistance Program but was not interviewed, the School District says,

because she had lower scores than other applicants. In August 1995, the

administrator who replaced Ms. Keith informed Mr. Cornell that Ms. Robbins had

called him a “puppet.” See id. at 328.

When Mr. Cornell instructed Ms. Robbins to meet with him and a union

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representative on August 8, she left work permanently without notifying Mr.

Cornell and later characterized her departure as a constructive discharge. Ms.

Robbins then filed suit in federal district court, alleging retaliatory discharge by

the School District in violation of Title VII, state law tortious interference by the

individual defendants, and willful and wanton conduct by the individual

defendants, warranting exemplary damages under Colo. Rev. Stat. § 13-21-102.

The district court granted summary judgment for the School District and the

individual defendants on all claims – holding, inter alia, that (1) because Ms.

Robbins voluntarily withdrew her first EEOC complaint, she had not exhausted

her administrative remedies for claims arising more than three-hundred days prior

to the filing of her second EEOC complaint; and (2) Ms. Robbins could not

prevail on her Title VII retaliation claim because she failed to show that the

nondiscriminatory rationale articulated by the School District was a pretext. The

court also ordered Ms. Robbins to pay the individual defendants’ attorney fees on

the grounds that she was not substantially successful on her exemplary damages

claim. See Colo. Rev. Stat. § 24-10-110(5)(c).

Ms. Robbins appeals the grant of summary judgment for the School District

on her Title VII claim and the attorney fee ruling. Aside from her contention that

the court erred in ordering her to pay attorney fees under Colo. Rev. Stat. § 24-

10-110(5)(c), she does not challenge the disposition of her state law claims.

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 Discussion

A. Title VII Claim

The district court correctly held that, because Ms. Robbins abandoned her

first EEOC complaint, she failed to exhaust her administrative remedies as to

events that took place more than three-hundred days before the filing of her

second EEOC complaint, and thus the court lacked jurisdiction to consider them.

See Jones v. Runyon, 91 F.3d 1398, 1401 (10th Cir. 1996); 42 U.S.C. §

2000e(5)(e)(1) (permitting a claimant to seek redress for adverse actions

occurring no more than three-hundred days before the filing of an EEOC

complaint). The district court only included events on or after March 3, 1994 –

three-hundred days prior to the second EEOC complaint – in its analysis.

According to Ms. Robbins, the court erred in applying the three-hundred-

day rule because the School District’s conduct prior to March 3, 1994 represented

part of a continuing violation or, alternatively, because her case comes under the

doctrine of equitable tolling. The district court correctly rejected both of these

arguments.

The continuing violation doctrine allows a Title VII plaintiff to challenge

conduct that occurred outside the statutory time period if such conduct was

“sufficiently related and thereby constitute[d] a continuing pattern of

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discrimination.” Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1248 n.8 (10th

Cir. 1999) (quoting Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994)).

“Mere continuity of employment, without more, is insufficient . . . .” Delaware

State College v. Ricks, 449 U.S. 250, 257 (1980). Although the act occurring

within the statutory period need not violate Title VII when viewed alone, the

plaintiff cannot merely allege the continuing effects of prior acts; rather, she must

show that events inside and outside the statutory period share commonality and

are related acts of discrimination. See Mascheroni v. Board of Regents of the

Univ. of California, 28 F.3d 1554, 1561-62 (10th Cir. 1994). In determining

whether a plaintiff has made such a showing, we consider: “(i) subject matter –

whether the violations constitute the same type of discrimination; (ii) frequency;

and (iii) permanence – whether the nature of the violations should trigger an

employee’s awareness of the need to assert her rights and whether the

consequences of the act would continue even in the absence of a continuing intent

to discriminate.” Baty, 172 F.3d at 1248 n.8 (quoting Martin v. Nannie & the

Newborns, Inc., 3 F.3d 1410, 1415 (10th Cir. 1993)).

We look for the third factor, permanence, because the continuing violation

doctrine “is premised on the equitable notion that the statute of limitations should

not begin to run until a reasonable person would be aware that . . . her rights have

been violated.” Id. (quoting Martin, 3 F.3d at 1415 n.6 ). Ms. Robbins clearly

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felt a need to assert her rights regarding events prior to March 3, 1994, but she

knowingly waived these rights by withdrawing her EEOC complaint. Since she

failed to satisfy the permanence requirement, she has not shown the existence of a

continuing violation.

We also decline to apply equitable tolling. Title VII time limits will be

equitably tolled “only if there has been active deception of the claimant regarding

procedural prerequisites” to bringing her case. Mascheroni, 28 F.3d at 1562

(internal quotation marks omitted). Ms. Robbins has made no showing regarding

such deception; rather, as noted above, she demonstrated awareness of her

obligation “to file promptly or forfeit her claim.” Id. Thus, in reviewing the

grant of summary judgment, we must exclude events prior to March 3, 1994 from

our analysis.

We review a grant of summary judgment de novo applying the same

standard as the district court and considering the record in the light most

favorable to the nonmovant. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59

(1970). A Title VII plaintiff alleging retaliatory discharge must make a prima

facie case by showing that “1) she engaged in protected opposition to

discrimination or participation in a proceeding arising out of discrimination; 2)

adverse action by the employer subsequent to the protected activity; and 3) a

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causal connection between the employee’s activity and the adverse action.”

Archuleta v. Colorado Dep’t of Inst., Div. of Youth Serv., 936 F.2d 483, 486

(10th Cir. 1991).

According to the School District, Ms. Robbins failed to establish a prima

facie case because her behavior did not constitute protected opposition to its

policies. However, Title VII extends protection to “those . . . who informally

voice complaints to their superiors or who use their employers’ internal grievance

procedures.” Rollins v. State of Florida Dep’t of Law Enforcement, 868 F.2d

397, 400 (11th Cir. 1989). Furthermore, a plaintiff does not have to prove the

validity of the grievance she was allegedly punished for lodging; “opposition

activity is protected when it is based on a mistaken good faith belief that Title VII

has been violated.” Love v. Re/Max of America, Inc., 738 F.2d 383, 385 (10th

Cir. 1984); see Zinn v. McKune, 143 F.3d 1353, 1362 (10th Cir. 1998).

Although Ms. Robbins asserts that the School District retaliated against her

for participating in an arbitration hearing, she does not point to any document

proving that her testimony concerned discrimination. See 42 U.S.C. 2000e-3(a).

Consequently, she has failed to show that her testimony warrants “the

exceptionally broad protection” reserved for participation in Title VII

proceedings. See Glover v. South Carolina Law Enforcement Div., 170 F.3d 411,

414 (4th Cir. 1999) (quoting Pettway V. American Cast Iron Pipe Co., 411 F.2d

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998, 1006 n.18 (5th Cir. 1969)).

The School District concedes, however, that Ms. Robbins “may rely on

‘participation activity’ based on her filing of charges with the EEOC.” Aple. Br.

at 27. The first allegedly retaliatory act within the statutory time period was Mr.

Cornell’s temporary delegation of authority to Ms. Keith. This occurred in

August 1994, about nine months after Ms. Robbins filed her first EEOC

complaint, and was both too loosely connected in substance and too far removed

in time from the first complaint to provide the requisite nexus for a prima facie

case. See Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997)

(holding that, absent additional evidence, four-month gap between protected

activity and alleged retaliation was insufficient for prima facie case). Ms.

Robbins also offers minimal evidence of a causal relationship between her second

EEOC complaint, filed on December 28, 1994, and adverse treatment in the spring

and summer of 1995. However, she does point to acts specifically directed at her,

based on the School District’s perception of her as a troublemaker. Thus, we will

assume but not hold that she has made a prima facie case of retaliation for her

filing of the second EEOC complaint.

Once a plaintiff establishes a prima facie case, the employer must offer a

facially legitimate, nondiscriminatory rationale for the adverse employment

action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).

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The School District contends that its discipline of Ms. Robbins represented “a

measured response to a contentious, disruptive, and increasingly abusive

employee.” Aple. Br. at 29. Ms. Robbins then has the burden “to show that there

is a genuine dispute of material fact as to whether the employer’s proffered reason

for the challenged action is pretextual – i.e. unworthy of belief.” Randle v. City of

Aurora, 69 F.3d 441, 451 (10th Cir. 1995). This she has failed to do.

We recognize that an employee’s behavior may warrant Title VII protection

when it can be considered intemperate or even disloyal. See Jennings v. Tinley

Park Community Consol. Sch. Dist., 796 F.2d 962, 968 (7th Cir. 1986); EEOC v.

Crown Zellerback Corp., 720 F.2d 1008, 1014 (9th Cir. 1983) (noting that

“[a]lmost every form of opposition to an unlawful employment practice is in some

sense disloyal to the employer, since it entails a disagreement with the employer’s

views and . . . policies”) (internal quotation marks omitted). However, like the

Eleventh Circuit in Rollins, 868 F.2d at 399, we are faced with a case involving

an unusually combative employee.

As the School District notes, several circuits have held that “otherwise

protected conduct may be so disruptive or inappropriate as to fall outside the

statute’s protection.” Id. at 401; see Laughlin v. Metro. Washington Airports

Auth., 149 F.3d 253, 259-60 (4th Cir. 1998). Whether the manner of pursuing a

grievance, as opposed to the grievance itself, must be reasonable is an issue of

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first impression in the Tenth Circuit. To determine the reasonableness of an

employee’s opposition, other courts have weighed “the need to protect individuals

asserting their rights [under Title VII] against an employer’s legitimate demands

for loyalty, cooperation and a generally productive work environment.” Rollins,

868 F.2d at 401; see also, e.g., Laughlin,149 F.3d at 259.

Like the Rollins plaintiff, whose conduct lay outside Title VII protection,

Ms. Robbins lodged frequent, voluminous, and sometimes specious complaints

and engaged in antagonistic behavior toward her superiors. See Rollins, 868 F.2d

at 399. The record reveals that, during the relevant time period, she (1)

challenged Assistant Superintendent Oatman’s decision to deny her union

grievance, see Aplt. App. at 278-80; (2) accused Mr. Cornell of slander, malicious

intent, and untruthfulness, see id. at 267, 301-02; (3) questioned Mr. Cornell’s

temporary delegation of authority to Ms. Keith, see id. at 224-25; (4) complained

that Assistant Superintendent Schwartzkopf’s response to her grievances

“contain[ed] false statements, and drip[ped] with hostility and bias,” id. at 293;

(5) called Mr. Schallmoser a “puppet,” id. at 140; and (6) accused the School

District and specific individuals of intending to “cover up for . . . inappropriate

actions taken by Risk Management administrators.” Id. at 292; see also id. at 293,

299-300.

Balancing the purpose of Title VII against the barrage of inflammatory

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memoranda Ms. Robbins wrote, often bypassing her immediate superiors to

complain to the assistant superintendent and even school board members, we hold

that, as a matter of law, these activities were not reasonable and did not constitute

protected opposition. See Rollins, 868 F.2d at 401. The School District argues

that it disciplined Ms. Robbins for making inflammatory, insubordinate comments

and disregarding the chain of command. Ms. Robbins has not presented a

sufficient basis for a jury to find this stated reason unworthy of belief. See

Randle, 69 F. 3d at 451. Thus, we affirm the grant of summary judgment for the

School District on her Title VII claim. In so doing, we note that evidence of

personality conflicts in the workplace, while regrettable, does not constitute proof

of a Title VII violation. See Aramburu v. Boeing Co., 112 F.3d 1398, 1406 (10th

Cir. 1997).

B. Attorney Fees

The district court ordered Ms. Robbins and her counsel to pay the

individual defendants’ attorney fees under Colo. Rev. Stat.§ 24-10-110(5)(c),

which provides in pertinent part:

In any action against a public employee in which
exemplary damages are sought based on allegations that
an act or omission of a public employee was willful and
wanton, if the plaintiff does not substantially prevail on
his claim . . . , the court shall award attorney fees
against the plaintiff or the plaintiff’s attorney or both

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 and in favor of the public employee.

According to Ms. Robbins, however, a federal court cannot award attorney fees

against her under § 24-10-110(5)(c) because it is not “a court of this state” within

the meaning of Colo. Rev. Stat. § 24-10-119, which states:

The provisions of this article shall apply to any action
against a public entity or a public employee in any court
of this state having jurisdiction over any claim brought
pursuant to any federal law, if such action lies in tort or
could lie in tort regardless of whether that may be the
type of action or the form of relief chosen by the
claimant.

Id. (emphasis added). Citing Griess v. Colorado, 841 F.2d 1042 (10th Cir. 1988),

and several district court cases purporting to follow it, see Sanchez v. Board of

County Comm’rs of El Paso County, 948 F. Supp. 950 (D. Colo. 1996) and

Goodwin v. Debekker, 807 F. Supp. 101 (D. Colo. 1992), she argues that we must

find § 24-10-110(5)(c) inapplicable to her case. We disagree.

We first note that § 24-10-119 simply makes clear that the Colorado

Governmental Immunity Act (“CGIA”), Colo. Rev. Stat. § 24-10-101 to § 24-10-

120, waiving immunity and imposing various conditions, also applies to federal

claims brought in state courts. Ms. Robbins brought all of her claims against the

individual defendants under state law in this case. In Griess, we only held that,

by enacting the CGIA, the state of Colorado had not waived its Eleventh

Amendment immunity to federal claims brought in federal court. We used § 24-

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10-119 to illustrate this point. See Griess, 841 F.2d at 1044-45. However,

nothing in Griess or § 24-10-119 indicates that a federal court cannot apply the

attorney fee provision, § 24-10-110(5)(c), to state claims over which it exercises

supplemental jurisdiction.

Indeed, such a construction would violate the Supremacy Clause of the

Constitution and the doctrine of supplemental jurisdiction. See U.S. Const. arts.

III & VI; 28 U.S.C. § 1367; Lytle v. City of Haysville, Kansas, 138 F.3d 857, 868

(10th Cir. 1998) (“When exercising jurisdiction over pendent state claims, we

must apply the substantive law of the forum state and reach the same decision we

believe the state’s highest court would, just as we would if our jurisdiction rested

on diversity of citizenship.”); Wojciechowski v. Harriman, 607 F. Supp. 631, 633

(D.N.M. 1985) (holding that New Mexico statute purporting to confine exclusive

original jurisdiction over suits under New Mexico Tort Claims Act to state district

courts violated the Constitution). Tenth Circuit case law acknowledges that

federal courts may apply the CGIA to state claims not barred by the Eleventh

Amendment. See, e.g., Beard v. City of Northglenn, Colorado, 24 F.3d 110, 118

(10th Cir. 1994) (plaintiff’s diversity-based state tort claim for malicious

prosecution against arresting officers was barred by CGIA because he had not

shown recklessness on officers’ part). To the extent that Goodwin, 807 F. Supp.

at 102, and Sanchez, 948 F. Supp. at 955, suggest otherwise, they are in error and

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must be disregarded.

We also note that Goodwin and Sanchez involved different facts than Ms.

Robbins’ case. In Goodwin, 807 F. Supp. at 102, the plaintiff was not obligated

to pay attorney fees under § 24-10-110(5) for failing to substantially prevail on

his federal § 1983 claims. We can easily distinguish Goodwin from Ms. Robbins’

case, in which the only prayer for exemplary damages was made under Colo. Rev.

Stat. § 13-21-102. Sanchez is also distinguishable because, in that case, the

primary claims against the employer arose under Title VII, and there were no

individual defendants. See Sanchez, 948 F. Supp. at 955. In contrast, Ms.

Robbins cannot sue the School District employees under Title VII, nor has she

sued them under another federal statute. Therefore, we do not consider her state

tortious interference and exemplary damages claims against the individual

defendants to be “peripheral.” Id.

We reject Ms. Robbins’ interpretation of § 24-10-119 and find the cases she
cites erroneous, to the extent that they misinterpret our holding in Griess, and
factually inapposite. Thus, the district court did not err in awarding attorney fees
under § 24-10-110(5)(c) due to her failure to substantially prevail on her state
exemplary damages claim.
AFFIRMED.

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