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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