F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 13 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CRYSTAL C. CONATZER,
Plaintiff-Appellant,
v. No. 03-5074
(D.C. No. 02-CV-326-C)
MEDICAL PROFESSIONAL (N.D. Okla.)
BUILDING SERVICES
CORPORATION, a corporation,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE and McKAY , Circuit Judges, and BRORBY , Senior Circuit
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff seeks review of the district court’s grant of summary judgment for
defendant on plaintiff’s claims of sexual harassment in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000-17, et seq .
See Conatzer v. Med. Prof’l Bldg. Servs., Inc., 255 F. Supp. 2d. 1259 (N.D. Okla.
2003). Plaintiff also appeals the district court’s decision not to exercise
supplemental jurisdiction over plaintiff’s state law claims, which it dismissed
without prejudice. Conatzer , 255 F. Supp. 2d. at 1271. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Summary judgment is appropriate if the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We review the
grant of summary judgment de novo , applying the same standard as the district
court. Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs .,
165 F.3d 1321, 1326 (10th Cir. 1999). We review the district court’s decision not
to exercise supplemental jurisdiction over plaintiff’s state law claims for abuse of
discretion. Gold v. Local 7 United Food & Commercial Workers Union , 159 F.3d
1307, 1310 (10th Cir. 1998) (quoting 28 U.S.C. § 1367(c)(3)).
We take the underlying facts from Conatzer, 255 F. Supp. 2d. at 1263-65,
and we repeat them only as necessary to explain our decision. Briefly
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summarized, plaintiff worked for defendant as a security guard. Her supervisor
was Dale Woodruff. Plaintiff alleged that on two occasions Woodruff sexually
harassed her and that Medical Professional Building Services Corp. (MPBS) was
both vicariously liable for Woodruff’s actions and negligent in allowing him to
engage in this harassment. 1
The alleged incidents occurred on September 28 and
October 11 or 12, 2001. The first involved a physical contact between plaintiff
and Woodward described by a witness (shift supervisor Wayne Carter) as
Woodruff stepping up to plaintiff, leaning against her, and rubbing against the
side of her chest. Id. at 1264. The second incident, described by another witness,
involved plaintiff bending over to pick something up, at which time Woodruff
briefly placed plaintiff in a headlock with his thighs. Id.
Plaintiff did not register a complaint about these occurrences until
October 15, 2001, when she spoke to MPBS shift supervisor, Ann Lewis. Lewis
instructed plaintiff to put her complaint in writing and present it to management,
which plaintiff did. The next day MPBS vice-president Tim McNulty commenced
an investigation and during the following few days told Woodruff not to retaliate
in any way against plaintiff.
1
Plaintiff also claimed Woodruff had made sexually inappropriate comments
to her and had patted her back and arm on occasion. Conatzer , 255 F. Supp. 2d.
at 1263-64.
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At some point during this time period, Woodruff changed plaintiff’s
schedule to include some work on weekends. While not as desirable to plaintiff,
the schedule change did not require additional hours and, in any event, lasted only
a few weeks. MPBS suspended Woodruff with pay on October 22, 2001, and
ultimately terminated his employment. Id. at 1264.
During the course of this litigation, MPBS learned plaintiff had allowed
Woodruff to falsify certain information in her employment application. MPBS
issued plaintiff a written reprimand and placed her on probation for ninety days.
This probation did not include any reduction in pay or hours. MPBS has taken no
other disciplinary action against plaintiff. Id. She is presently in MPBS’s employ
and happy with her current job. Aplt. App. Vol. I at 160, 175.
The district court considered plaintiff’s claim as solely one for a hostile
work environment, inasmuch as she had offered no evidence to support a
quid pro quo theory that Woodruff had either threatened her with unfavorable
treatment if she refused to submit to his assaults or conditioned any favorable
treatment on such submissions. Conatzer, 255 F. Supp. 2d. at 1266. The court
then considered plaintiff’s claim of vicarious employee liability and MPBS’s
available defenses as outlined in Faragher v. City of Boca Raton , 524 U.S. 775
(1998) ( Faragher ) and Burlington Industries, Inc. v. Ellerth , 524 U.S. 742 (1998)
(Ellerth ). In these cases, the Supreme Court described an employer’s affirmative
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defense to vicarious liability for a supervisor’s conduct as requiring that the
employer exercise reasonable care to prevent and to promptly correct any
sexually harassing behavior. In addition, the defendant must establish that the
plaintiff-employee unreasonably failed to avail herself of preventative or
corrective opportunities provided by the employer or to otherwise avoid harm.
Faragher , 524 U.S. at 807. The affirmative defense cannot be raised, however,
if the harassing supervisor takes a “tangible employment action” against the
subordinate employee. Id; Harrison v. Eddy Potash, Inc. , 248 F.3d 1014, 1024
(10th Cir. 2001).
The district court first considered plaintiff’s argument that MPBS was not
entitled to invoke the Faragher/Ellerth affirmative defense because she suffered
tangible employment actions. The court determined, however, that she failed
to establish any tangible employment actions as a matter of law. Conatzer ,
255 F. Supp. 2d. at 1267-68. Having determined that MPBS was entitled to assert
the Faragher/Ellerth affirmative defense, the court found MPBS had satisfied the
first prong of that defense: that MPBS had exercised reasonable care to prevent
and promptly correct the harassing behavior. Plaintiff’s arguments to the contrary
failed because MPBS had no notice of Woodruff’s harassment prior to
October 15, 2001, had an existing anti-discrimination policy and complaint
procedure, and promptly and effectively responded upon receipt of plaintiff’s
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complaint. Id. at 1268-70. The court further found that MPBS satisfied the
second prong of the affirmative defense by establishing that plaintiff had failed to
avail herself of protective or corrective opportunities provided by MPBS or to
avoid harm otherwise. Id. at 1270. For similar reasons the court also determined
plaintiff’s actions for negligence failed as a matter of law. Id. at 1271. Finally,
the court declined to exercise supplemental jurisdiction over plaintiff’s state law
claims. Id. at 1271.
On appeal, plaintiff first contends the district court erred in holding there
were no tangible employment actions which would preclude MPBS’s invocation
of the Faragher/Ellerth affirmative defense. She claims there were “probably as
many as [four] such tangible employment actions” following the September 28
incident, which she lists as (1) the October 11 or 12 harassing incident;
(2) Woodruff’s change in her work schedule; (3) her unpaid medical leave
following the incidents; and (4) the subsequent disciplinary probation imposed for
having altered her job application. Aplt. Br. at 12.
Her first listed “action” was, as explained by the district court, not an
employment action at all, but rather the second incident of alleged sexual
harassment. Plaintiff fails to explain how this separate act of harassment falls
within the definition of a tangible employment action, which is typically defined
as a “significant change in employment status, such as hiring, firing, failing to
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promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits.” Ellerth , 524 U.S. at 761. Nor does
combining that incident with her unpaid medical leave some weeks later
transform it into a tangible employment action.
The district court adequately explained why the change of schedule did not
constitute a tangible employment action, either. Plaintiff admitted that the topic
of a schedule change was discussed before the October 15 report of harassment.
Aplt. App. at 183-84. She further admitted that the reason for the shift change
was that other employees with more seniority had complained that she was
receiving preferred treatment because of her schedule. Id. Moreover, the
schedule change did not reduce her hours or pay and lasted only a few weeks.
She next argues that she suffered a tangible employment action because of
her “psychologist required but unpaid medical leave to recover” from the
incidents with Woodruff. Aplt. Br. at 12. She overlooks the fact, however, that
the medical leave was granted at her request and occurred several weeks after
Woodruff was removed from the workplace. She thus fails to support her claim
that this absence constituted a tangible employment action.
Lastly, she argues that the ninety-day probation and written reprimand was
a tangible employment action criteria. The reprimand, which was not
accompanied by suspension, loss or reduction of pay, or loss of benefits, resulted
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from plaintiff’s admission that she had falsified her job application. Plaintiff
fails to explain how this action constituted a significant change in her
employment status, nor does she offer any authority for her assertion that this
action by MPBS was “illegal.” See Aplt. Br. at 19. Finally, although she
sprinkles vague references to “retaliation” in her brief, see Aplt. Br. at vii, 15-19,
25, she concedes she waived any retaliation claim. Id. at vii n.1; see also Aplt.
App. Vol. I at 130 (plaintiff’s response to MPBS’s motion for summary
judgment). Thus, the reprimand does not constitute a tangible employment action.
In any event, it is a tangible employment action taken by the harassing supervisor
against the plaintiff employee that forecloses reliance on the affirmative defense.
See Harrison , 248 F.3d at 1024. MPBS was therefore entitled to invoke the
affirmative defense to its liability for Woodruff’s actions.
The district court further correctly determined that MPBS’s stated policy
and grievance procedures were adequate and that once plaintiff commenced the
grievance procedure by delivering a written complaint to management, the alleged
harassment ended immediately. Plaintiff presented her complaint to McNulty on
October 15, and he immediately launched an investigation. Although she
complains that Woodruff was not suspended until the following Monday,
October 22, she admitted she did not see him after October 18. Aplt. App. Vol I.
at 188. McNulty interviewed witnesses to the incidents between plaintiff and
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Woodruff. He interviewed Woodruff, specifically instructing Woodruff to refrain
from harassing plaintiff. Aplee. Supp. App. at 41-42. Although he ultimately did
not find sufficient evidence to determine Woodruff’s conduct constituted sexual
harassment, Woodruff was nevertheless terminated for inappropriate behavior.
Id. at 42.
Nor does the record support plaintiff’s argument that because Carter
witnessed the September 28 incident, MPBS was obligated to take preventative
measures prior to plaintiff’s October 15 formal complaint. Plaintiff did not
complain to Carter, nor is there any indication that what Carter observed was
anything other than an isolated incident. Thus, the district court correctly
determined that MPBS exercised reasonable care to prevent harassment and to
promptly and appropriately respond to plaintiff’s complaint.
Likewise, the court correctly found that plaintiff had failed to avail herself
of preventative or corrective opportunities. She concedes that MPBS’s handbook
prohibits sex discrimination, Aplt. Br. at 24. Based on her previous employment
with other companies, she understood that sexual harassment is illegal; she had
also received training in the complaint process. Aplt. App. Vol. I at 105.
MPBS has posted in its break rooms, including the break room directly
behind the security office, statements that harassment on the basis of sex is
prohibited by law, Aplee. Supp. App. at 41, and plaintiff passed by these bulletin
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boards several times a day. Aplt. App. at 178. Nonetheless, she waited nearly
three weeks after the first incident to register her complaint. Absent an adequate
explanation for this delay, this inaction by plaintiff constitutes an unreasonable
failure “to take advantage of any preventative or corrective opportunities provided
by the employee or to avoid harm otherwise.” Faragher , 524 U.S. at 807; Ellerth ,
524 U.S. at 765.
Finally, in light of plaintiff’s reliance on the same facts and arguments to
support her theory that MPBS was negligent in handling her complaint, see
Aplt. Br. at 42, we uphold the district court’s determination on this issue as well.
See Conatzer , 255 F. Supp. 2d. at 1270-71. Because the district court properly
granted summary judgment to MPBS, the court did not err in its award of costs to
MPBS. See Fed. R. Civ. P. 54(d)(1).
To the extent plaintiff claims error in the district court’s decision not to
retain supplemental jurisdiction over her state law claims, see id. at vii, she has
presented no argument on this issue and it is therefore waived. See City of
Stilwell v. Ozarks Rural Elec. Co-op. Corp. , 166 F.3d 1064, 1068 n.4 (10th Cir.
1999) (issue listed but not addressed is waived). The same holds for her
attorney’s purported appeal of “any District Court decision to impose sanctions.”
Aplt. Br. at vii.
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For these and substantially the reasons stated by the district court in
Conatzer , 255 F. Supp. 2d. 1259, the judgment is AFFIRMED .
Entered for the Court
Monroe G. McKay
Circuit Judge
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