Conatzer v. Medical Professional Building Services Corp.

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This order and judgment is not binding precedent, except under the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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