F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 9 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
NANCY H. RENNARD,
Plaintiff-Appellant,
v. No. 03-8031
(D.C. No. 02-CV-98-B)
WOODWORKER’S SUPPLY, INC., a (D. Wyo.)
Wyoming corporation,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL , BALDOCK , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiff-appellant Nancy H. Rennard appeals the summary judgment
entered by the district court in favor of her former employer, defendant-appellee
*
This order and judgment is not binding precedent, except under the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.
Woodworker’s Supply, Inc. (WSI), on her claims for hostile work environment
sexual harassment, retaliation, and constructive discharge under Title VII of the
Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17. 1
We exercise jurisdiction
under 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
Unless otherwise noted, the following facts are undisputed or are as alleged
by plaintiff.
Plaintiff began working at WSI’s facility in Casper, Wyoming on
September 11, 2000. See Aplt. App. at 43 (pp. 14-15). On that day, she signed a
document entitled “Important Policies,” which stated as follows:
[WSI] will not tolerate sexual or ethnic/racial harassment of or
by any employee. Any occurrence of such harassment must be
reported to the Personnel Manager or President in writing within one
week. All reports will be promptly investigated with due regard for
the privacy of all involved persons. Any employee found to have so
harassed a fellow-employee or subordinate would be subject to
severe discipline or discharge. We will not retaliate against any
employee who makes a good faith report of alleged harassment.
1
Having granted summary judgment in favor of WSI on all of plaintiff’s
federal claims, the district court declined to exercise supplemental jurisdiction
over plaintiff’s state-law claims, and the court dismissed the state-law claims
without prejudice. Plaintiff is not challenging the dismissal of her state-law
claims, and we therefore do not need to address that part of the district court’s
order.
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Failure to report activity that you consider sexual harassment
in accordance with the above is a violation of company rules and, as
such, could subject you to discipline or dismissal.
Id. at 47 (pp. 31-32), 70.
On two separate occasions in October and November 2000, while on the job
at WSI, plaintiff discovered that an unknown person or persons had put a
pornographic picture of a naked man in her coat pocket. Id. at 49-50 (pp. 41-45).
On two separate occasions during this same time period, plaintiff also discovered
that an unknown person or persons had placed a condom in her coat pocket. Id.
Although plaintiff informed a coworker about the second condom incident, she
did not report any of these incidents to anyone in management at WSI. Id.
Towards the end of November, plaintiff discovered another condom in her
coat pocket. Id. at 50 (p. 45). As with the prior incidents, plaintiff did not know
who placed the third condom in her coat pocket. Id. (pp. 45-46). However, a day
or two before she found the third condom, one of her co-workers, Larry Rogers,
had cornered her in WSI’s showroom and demanded that she give him a back rub.
Id. (pp. 46-48). Prior to the back rub incident, plaintiff alleges that Rogers had
also engaged in the following behavior: (1) he called her “Frenchie,” id. at 50-51
(pp. 48-52), and on one occasion he explained to another coworker in her
presence that he did so because she is “half French and . . . French women could
do a lot of good things to a man’s body;” id. (p. 50); (2) on one occasion he tried
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to engage her in a discussion about a sex toy magazine, id. at 53 (pp. 62-64); and
(3) on several occasions he asked her to jump up and down, specifically stating on
at least one occasion that he wanted to see her breasts bounce up and down, id. at
54 (pp. 65-67).
Prior to the back rub incident in late November, while she found his
conduct to be offensive, plaintiff did not consider Rogers’ conduct towards her to
be sexual harassment. Id. at 52 (pp. 53-54), 54 (pp. 66-67), 59 (pp. 93-95). As a
result, plaintiff did not report any of the pre-back rub incidents to anyone in
management at WSI, and this was a voluntary decision on her part. Id. at 52 (pp.
54-55), 53-54 (pp. 64-67), 58 (p. 82). However, on December 1, after finding the
third condom in her coat pocket, which she apparently found on November 30,
plaintiff reported the finding to her immediate supervisor, Chris Sulzen. Id. at 50
(pp. 45-46), 53 (p. 61). Sulzen immediately reported the incident to Susan Miller,
the Human Resources Director at WSI’s Casper facility, and plaintiff then met
with Miller on December 1. Id. at 53 (pp. 61-62).
During the meeting with Miller, plaintiff told Miller about each of the
incidents involving condoms and pornographic pictures and about each of the
offensive incidents involving Rogers, and she stated that she believed that Rogers
was probably the person who had placed the condoms and pictures in her coat
pocket since his offensive conduct coincided with the appearance of the pictures
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and condoms. Id. at 53 (pp. 62-63), 59 (pp. 93-95), 199. Plaintiff also suggested
that another co-worker, Justin Achenbach, might be responsible for planting the
condoms and pornographic pictures. Id. at 199. Plaintiff suggested this because
she believed that Achenbach “may have reason to lash out at women,” although
she also stated that she did not “think it’s really [Achenbach].” Id.
Duane Prather, the Operations Manager at WSI’s Casper facility, attended
at least part of the meeting with plaintiff and Miller on December 1. Id. at 54
(pp. 67-68). Plaintiff claims that Miller and/or Prather informed her during the
meeting on December 1 “that Larry had been in trouble before, and that what he
had done there, even if they couldn’t prove he was the owner of the condoms but
by his remarks he would be fired immediately.” Id. at 54 (p. 68). Following the
meeting with Prather and Miller, plaintiff returned to work and finished her shift
for that day without encountering any problems with Rogers. Id. at 54-55
(pp. 68-70). There is no indication in the record that either Miller or Prather took
any further action on December 1 concerning plaintiff’s allegations regarding
Rogers and Achenbach.
On the following day, December 2, a Saturday, plaintiff was at work in
WSI’s warehouse. Id. at 55 (p. 70). According to plaintiff, she was bending over
to write on an item of stock “when [Rogers] came from somewhere, . . . and he
took his hands and wiggled just under the inside of my pants.” Id. (pp. 70-71).
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Plaintiff claims that she “immediately stood up and gave him a dirty look, and he
was laughing.” Id. (p. 71). After Rogers left the area, plaintiff immediately
reported the touching incident to Tracy Vigo, an assistant manager. Id. at 55
(p. 72), 212 (pp.13-15). After he arrived at work later that day, plaintiff also
reported the incident to Prather. Id. at 56 (p. 73). Prather then reported the
incident to Miller at some point during the weekend. Id. at 203 (p. 27). On
December 2, Prather also interviewed plaintiff and four other WSI employees who
were working in the vicinity of the incident. 2
Id. at 213. None of the other
employees had witnessed the touching incident. Id.
On the morning of Monday, December 4, Miller sent an e-mail to John
Wirth, Jr., the President and Chief Executive Officer of WSI, informing him that
she and Prather needed to speak with him “ASAP regarding sexual harassment
allegations.” Id. at 228. After a number of phone conversations on December 4
2
As pointed out by plaintiff in her opening brief, there is a factual dispute
concerning whether Prather also spoke to Rogers on December 2. See Aplt. Br.
at 7-8. On the one hand, Prather’s notes from December 2 do not indicate that he
spoke to Rogers on that day, see Aplt. App. at 213, and a document Prather
prepared on December 8 states that as of “Monday December 4, 2000 Larry
Rogers had yet to be talked to by anyone here,” id. at 214. Similarly, a document
prepared by Miller on December 8 states that “Larry was not talked to about this
until Wednesday, Dec. 6, 2000 by Russ Rauchfuss.” Id. at 220. Prather testified
at his deposition, however, that he did speak to Rogers on December 2, a fact he
did not recall until October 2001. Id. at 208-09 (pp. 32-34), 210-11. Because we
must construe the evidence in the record in the light most favorable to plaintiff,
we will assume that Prather did not speak to Rogers on December 2.
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and 5, Wirth authorized Miller to hire an outside investigator, attorney
R.E. Rauchfuss, to investigate plaintiff’s allegations, and Miller retained
Rauchfuss on December 5. Id. at 229 (pp. 27-28), 236 (p. 39). On December 6,
Rauchfuss conducted his investigation by interviewing plaintiff, Rogers, and
Achenbach. 3
Id. at 237 (pp. 18-20). On December 7 or 8, Rauchfuss provided
Wirth with a verbal report regarding his investigation. Id. at 82 (pp. 37-38). On
December 8, Rauchfuss also sent Wirth a written report regarding his
investigation. Id. at 238 (pp. 22-23). Although a copy of Rauchfuss’ written
report is not in the record before this court, it is undisputed that Rauchfuss
reported to Wirth that Rogers had admitted to engaging in at least some of the
offensive conduct alleged by plaintiff but had denied planting the condoms and
pornographic pictures in her coat pocket. See Aplt. Br. at 10; Aplee. Br. at 9.
Based on the information provided by Rauchfuss, Wirth decided to
discipline both Rogers and plaintiff. See Aplt. App. at 82 (pp. 38-39), 254-55.
Although the record before this court does not contain a copy of the written
disciplinary notice that WSI gave to Rogers, WSI has asserted that Rogers was
3
Previously, on December 4, Prather and Miller had also interviewed
Achenbach, and he denied ever seeing any condoms or pornographic pictures at
WSI. See Aplt. App. at 232, 233 (pp. 29-30). On December 4, Prather and Miller
also interviewed Art Garcia, a WSI employee who worked with Rogers. Id.
Garcia told them that he had heard Rogers call plaintiff “frenchy,” but he did not
“know what that’s about.” Id. at 232.
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informed on December 9 that he was going to be suspended from work for two
days without pay for violating the company’s sexual harassment policy, see
Aplee. Br. at 9-10, and plaintiff has not disputed WSI’s assertion, see Aplt. Br. at
13. In addition to being suspended for two days without pay, 4
Rogers was also
instructed: (1) to have no further contact with plaintiff; and (2) that he would be
severely disciplined or terminated if he contacted plaintiff or again violated the
company’s sexual harassment policy. See Aplt. App. at 251, 254.
Plaintiff received her written “Employee Discipline Notice” on
December 11 during a meeting with Miller, Prather, and Vigo. Id. at 251, 256.
The Notice stated that plaintiff was being disciplined for “[f]ail[ing] to report
sexual harassment allegations within one week time period of when alleged
harassment began.” Id. at 256. The Notice also stated that the “Disciplinary
Action Taken” was a “ Written Reprimand ,” and that “[i]mmediate improvement
in this area is required. Failure to do so may result in your suspension and/or
final written warning.” 5
Id.
4
It appears from the record that Rogers served his two-day suspension on
December 12 and 13. See Aplt. App. at 254.
5
According to the Notice, a “Final Written Warning” was the third step in
WSI’s progressive disciplinary process after “Written Reprimand” (the first step)
and “Suspension” (the second step). See Aplt. App. at 256. The Final Written
Warning would inform the offending employee that “[a] reoccurrence of this
incident or failure to make the necessary improvements in your performance will
result in you being discharged.” Id.
-8-
During the meeting on December 11, Miller told plaintiff that Rogers “had
admitted to part of the allegations against him,” id. at 251, but Miller apparently
did not disclose to plaintiff the specific allegations he had admitted to, id. at 254.
In addition, in accordance with the instructions she had received from Wirth,
Miller instructed plaintiff to tell her husband to stop trying to contact Rauchfuss.
Id. at 204 (pp. 62-63), 252, 255. 6
The record also indicates that Miller and
Prather had previously warned plaintiff that she would be disciplined if she did
not stop talking to other employees about the sexual harassment investigation. Id.
at 214-15, 220.
On the next day, December 12, plaintiff received an “Evaluation Report”
that had been prepared by her supervisor, Chris Sulzen. Id. at 264 (pp. 46-48).
On the first page of the Report, Sulzen reported that “[r]ecently Nancy has
become a high maintenance employee. A high level of Managements time, as
well as other WSI employees time has been interrupted, causing an undesirable
work atmosphere conducive to a high productivity level.” Id. at 263. Although a
complete copy of the Report is not in the record before this court, 7
plaintiff has
6
During the latter part of the week of December 4, plaintiff’s husband had
called and left a message for Rauchfuss at his office. After consulting with
Wirth, Rauchfuss did not return the call. See Aplt. App. at 239 (pp. 25-28). This
was despite the fact that Rauchfuss had previously assured plaintiff that she could
call him at any time if she had any concerns. Id. at 238-39 (pp. 23-24, 27-28).
7
The copy of the performance evaluation that is in the record contains only
(continued...)
-9-
conceded that Sulzen “otherwise gave her satisfactory or good marks on her work
performance.” Aplt. Br. at 14.
On December 13, plaintiff filed a “Petition Requesting Stalking Protection
Order” in state court. See Aplt. App. at 258-59. In the petition, plaintiff
requested that the court “order that [Rogers] refrain from any further acts of
stalking involving [plaintiff].” Id. at 258. On December 15, the state court held a
hearing regarding the petition, id. at 109-34, and Miller, Prather, Sulzen, and
Steve Ford (another WSI employee) attended the hearing, id. at 249 (pp. 154-55).
Prior to the commencement of the hearing, the WSI employees spoke only to
Rogers’ attorney, and they did not speak to plaintiff. Id. (p. 155). Once the
hearing began, the WSI employees seated themselves on the side of the courtroom
behind Rogers and his attorney. Id. (p. 156). Plaintiff testified at her deposition
that she believes the WSI employees were “showing force in backing Larry . . .
[and] were there to show encouragement on his behalf and not mine.” Id.
The state court issued a decision letter denying plaintiff’s petition on
December 18. Id. at 265-66. On the same day, plaintiff filed charges of sex
discrimination and retaliation against WSI with the Wyoming Fair Employment
7
(...continued)
page one of the evaluation, and page one does not contain any performance
ratings. See Aplt. App. at 263. We therefore assume that plaintiff is referring to a
part of the performance evaluation that is not in the current record.
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Program (WFEP). 8
Id. at 267-68. During the course of its investigation regarding
plaintiff’s allegations, the WFEP discovered that there were other women at
WSI’s Casper facility who claimed that had Rogers touched them in an offensive
manner, and the WFEP relayed that information to WSI on December 20. Id. at
281 (pp. 50-51). After learning of this information, Wirth immediately instructed
Miller to interview every female employee at WSI’s Casper facility and ask them
if Rogers had ever touched them in an offensive manner. Id. (pp. 51-52). Miller
then conducted the interviews, and she learned that Rogers had previously
touched Debbie Ellsbury, an employee of WSI, and Lisa Hughes, an independent
contractor. Id. at 281 (pp. 51-52), 283 (pp. 9-12), 284 (pp. 10-12). Neither
woman had previously reported the incidents to anyone in management at WSI.
Id. at 283 (pp. 9-10), 284 (p. 12), 286 (pp. 13-14). Miller verbally reprimanded
Ellsbury for failing to report the touching incident, id. at 286 (pp. 13-14), but
Hughes did not receive a reprimand, id. at 285 (pp. 17-18).
8
After investigating plaintiff’s charges, the WFEP determined that there was
reasonable/probable cause to believe the charges to be true. See Aplt. App. at
293, 310. The WFEP’s determination did not bar the district court from granting
WSI’s motion for summary judgment. See Simms v. Okla. ex rel. Dep’t of Mental
Health & Substance Abuse Servs. , 165 F.3d 1321, 1331 (10th Cir. 1999) (holding
that “when the independent facts before the district court judge fail to establish a
genuine issue of material fact, a favorable EEOC letter of determination does not
create one”).
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In the brief it submitted to the district court in support of its motion for
summary judgment, WSI asserted that “[b]ased upon the new information
[regarding Ellsbury and Hughes], on December 22, 2000, Rogers was asked to
resign. As of that date, Rogers was no longer employed by [WSI].” Id. at 18.
Although WSI did not submit any evidence to the district court to support these
allegations, Plaintiff has not disputed them.
During its investigation regarding plaintiff’s allegations concerning Rogers,
WSI was aware of an additional prior incident involving Rogers. In June 2000,
Miller distributed survey forms to the employees at WSI’s Casper facility
regarding an upcoming company picnic, and one of the questions pertained to the
type of entertainment the employees would like to have at the picnic. Id. at 257
(p. 71), 287. When Miller handed one of the survey forms to Rogers, he
responded by stating that Miller could “strip.” Id. Miller reported this incident to
Prather, and Prather subsequently met with Rogers and read him the company’s
sexual harassment policy. Id. Prather also gave Rogers a verbal reprimand,
telling him to “knock it off.” Id. at 257 (pp. 71-72), 287. There is no indication
in the record that WSI had knowledge of Rogers engaging in any additional
offensive behavior between June 2000 and December 2000.
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Finally, it is undisputed that plaintiff did not return to her job at WSI at
some point after she received the written reprimand on December 11, 2000. 9
It is
unclear when plaintiff left WSI, however, as the district court found that
plaintiff’s last day was December 11, id. at 415 (footnote 2), while plaintiff
testified at her deposition that her last day was either December 18 or 19, id. at 43
(pp. 14-15). Because there appears to be a factual dispute concerning when
plaintiff left WSI, we will accept plaintiff’s claim that she did not leave until
December 18 or 19 as true for purposes of this appeal.
II. ANALYSIS
The district court concluded that WSI was entitled to summary judgment on
each of plaintiff’s claims. First, with respect to plaintiff’s claim that she was
subjected to a sexually hostile work environment, the court concluded that WSI
had demonstrated that “its response[s] to the acts of sexual harassment of which it
had knowledge were prompt, reasonably calculated to end the harassment, and
9
In her opening brief, plaintiff claims that, following her departure from
WSI, “she continued through the WFEP to make clear that she wanted to return.
Ultimately, negotiations foundered on the issue of the letter of reprimand, which
WSI refused to remove [from her personnel file], and its refusal to guarantee her
some physical separation from Larry Rogers.” Aplt. Br. at 26 n.2. We note,
however, that while Wirth testified at his deposition that he refused to remove the
reprimand from plaintiff’s personnel file, see Aplt. App. at 270 (pp. 77-78), there
does not appear to be any record support for plaintiff’s assertion that WSI refused
to guarantee her physical separation from Rogers. Instead, the record indicates
only that plaintiff was unable to transfer to another work area because there were
no available openings that were acceptable to her. Id. at 204 (p. 62), 252.
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effective.” Aplt. App. at 412. The court therefore determined that plaintiff had
failed to establish that WSI was liable under a negligence theory for creating a
sexually hostile work environment. Id. Second, with respect to plaintiff’s
retaliation claim, the court concluded that “[t]he evidence [in] this case
demonstrates that Plaintiff was reprimanded for her own protection and that
[WSI] took steps reasonably calculated to end the harassment once it was made
aware of the allegations of harassment.” Id. at 417. As a result, the court was
“unable to conclude . . . that the written reprimand for failing to comply with the
sexual harassment policy constituted an adverse employment action.” Id. Lastly,
after noting that plaintiff’s pleadings “appear[ed]” to assert a claim for
constructive discharge, the court concluded that plaintiff “was not constructively
discharged in this case because she resigned of her own free will.” Id. at 415
(footnote 2).
Plaintiff argues that the district court committed reversible error because it
construed and decided genuine issues of material fact adversely to her. We agree
with plaintiff that the district court should have framed its conclusions in a
manner more consistent with the standards for summary judgment under
Fed. R. Civ. P. 56. For the reasons set forth below, we nonetheless conclude that
the district court reached the proper result, and we therefore affirm the entry of
summary judgment on each of plaintiff’s claims.
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A. Standard of Review.
“We review the district court’s grant of summary judgment de novo,
applying the same legal standard used by the district court.” Simms v. Okla. ex
rel. Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th
Cir. 1999). Summary judgment is appropriate if “there is no genuine issue as to
any material fact and [ ] the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c).
We examine the record to determine whether any genuine issue of
material fact was in dispute; if not, we determine whether the
substantive law was applied correctly, and in so doing we examine
the factual record and reasonable inferences therefrom in the light
most favorable to the party opposing the motion. However, where
the non moving party will bear the burden of proof at trial on a
dispositive issue[,] that party must go beyond the pleadings and
designate specific facts so as to make a showing sufficient to
establish the existence of an element essential to that party’s case in
order to survive summary judgment.
Neal v. Roche , 349 F.3d 1246, 1249 (10th Cir. 2003) (quotation omitted).
B. Hostile Work Environment Sexual Harassment.
Title VII’s prohibition of employment discrimination based on sex
encompasses hostile work environment sexual harassment. See
42 U.S.C. § 2000e-2(a)(1); Hirschfeld v. New Mexico Corrections
Dep’t , 916 F.2d 572, 575 (10th Cir. 1990). This harassment occurs
where “[sexual] conduct has the purpose or effect of unreasonably
interfering with an individual’s work performance or creating an
intimidating, hostile, or offensive working environment.” Meritor
Sav. Bank, F.S.B. v. Vinson , 477 U.S. 57, 65 . . . (1986) (quoting
29 C.F.R. § 1604.11(a)(3) (1985)). To form the basis of a claim, the
sexual harassment “must be sufficiently severe or pervasive ‘to alter
the conditions of [the victim’s] employment and create an abusive
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working environment.’” Id. at 67 . . . (alteration in original) (quoting
Henson v. City of Dundee , 682 F.2d 897, 902 (11th Cir. 1982)).
Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 672 (10th Cir. 1998).
In addition to having to prove that she was subjected to a sexually hostile
work environment, plaintiff must also establish a basis for imposing liability on
WSI. See Ford v. West , 222 F.3d 767, 775 (10th Cir. 2000) (“To survive
summary judgment under Title VII, the record must support an inference of a
[sexually] hostile work environment and a basis for employer liability.”)
(emphasis in original). We conclude that plaintiff failed to establish the existence
of a genuine issue of material fact for trial concerning the liability of WSI.
“Because we dispose of [plaintiff’s] claim based on the absence of employer
liability, we need not resolve . . . the issue of the presence of a hostile work
environment.” Id.
There are three alternative bases for holding an employer liable for hostile
work environment sexual harassment. Adler , 144 F.3d at 673. “These are
(1) where the acts are committed by an employee acting ‘within the scope of [his
or her] employment’; (2) where the employer was negligent or reckless; or
(3) where the employee purported to act or to speak on behalf of the employer.”
Id. (quotation omitted). The only basis alleged by plaintiff for employer liability
in this case is WSI’s alleged negligence in allowing fellow employees to engage
in sexual harassment. “Under this theory of employer liability, the plaintiff must
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establish that the employer had actual or constructive knowledge of the hostile
work environment but did not adequately respond to notice of the harassment.”
Id. (quotation omitted).
A plaintiff demonstrates actual employer knowledge where the
plaintiff has reported harassment to management-level employees.
An employer may be deemed to have constructive knowledge of . . .
harassment where the pervasiveness of the harassment supports an
inference of employer knowledge. Only when the acts of harassment
are so egregious, numerous, and concentrated as to add up to a
campaign of harassment will the employer be liable for failure to
discover the harassment.
Ford , 222 F.3d at 776 (citations and quotations omitted).
“In addition to an employer’s actual or constructive knowledge, we must
also consider the reasonableness of the employer’s response to any harassment
about which it knew or should have known.” Id. “An employer is not strictly
liable for all harassment of which it actually or constructively knew; it may
discharge its obligation by taking appropriate remedial or preventative action.”
Adler, 144 F.3d at 676. As we have recognized, “the test . . . [is] whether the
remedial and preventative action was ‘reasonably calculated to end the
harassment,’” id. (quotation omitted), and “[p]laintiff bears the burden of
presenting evidence establishing a genuine issue of fact that the employer’s
response was unreasonable,” Ford , 222 F.3d at 776; see also Scarberry v.
ExxonMobil Oil Corp. , 328 F.3d 1255, 1257 (10th Cir. 2003) (noting that this
“court may simply examine the record, including the undisputed evidence, to
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determine whether [an employer’s] responses to claims of sexual harassment were
reasonable as a matter of law”).
In analyzing the propriety of summary judgment in this case, we must also
keep in mind that, while Rogers denies placing the condoms and pornographic
pictures in plaintiff’s coat pocket, the record is undisputed that he engaged in
repeat conduct that was sexually offensive. Although there is no definitive test to
measure an employer’s response to repeat conduct, we have provided the
following guidance for analyzing the issue of employer liability in cases involving
repeat conduct:
The employer is, of course, obliged to respond to any repeat
conduct; and whether the next employer response is reasonable may
very well depend upon whether the employer progressively stiffens
its discipline, or vainly hopes that no response, or the same response
as before, will be effective. Repeat conduct may show the
unreasonableness of prior responses. On the other hand, an employer
is not liable, although a perpetrator persists, so long as each response
was reasonable. It follows that an employer is not required to
terminate a perpetrator except where termination is the only response
that would be reasonably calculated to the end the harassment. See
Hirschfeld , 916 F.2d at 579 n.6. (“While there may be egregious
cases where such action is the only option for an employer, in less
serious cases a reprimand, brief suspension, or other remedial steps
may be sufficient to remedy the situation.”). . . .
Unfortunately, some harassers may simply never change. Just
as unfortunate, a victim may have to suffer repeated harassment
while an employer progressively disciplines the perpetrator to
determine whether he or she is just such a “hard head” case. It is
some consolation for the victim that, to be reasonable, responses
must progress more rapidly in proportion to more serious and
frequent harassment. The courts, however, must balance the victim’s
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rights, the employer’s rights, and the alleged harasser’s rights. If our
rule were to call for excessive discipline, employers would inevitably
face claims from the other direction of violations of due process
rights and wrongful termination.
Adler , 144 F.3d at 676-77.
We conclude that plaintiff failed to put forth sufficient evidence to
establish that WSI responded inadequately to her reports about Rogers. As set
forth above, the record shows that: (1) Rogers was verbally reprimanded for the
offensive comment he made to Miller in June 2000 (the first incident of offensive
conduct involving Rogers that was known to WSI), and there is no indication in
the record that WSI had knowledge of Rogers engaging in any additional
offensive conduct between June 2000 and December 2000; (2) after learning of
plaintiff’s allegations regarding Rogers, WSI, acting through, Wirth, Miller, and
Prather, promptly hired an outside investigator to investigate plaintiff’s
allegations, and the investigator completed his investigation on December 6 or 7
and issued a written report on December 8; (3) on December 9, WSI gave Rogers
a written reprimand and suspended him for two days without pay; (4) WSI had no
knowledge that Rogers had touched other women at its Casper facility in an
offensive manner until it received information to that effect from the WFEP on
December 20; and (5) after it received the information from the WFEP, WSI
immediately interviewed all of the female employees at its Casper facility, and,
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after it learned about the incidents involving Ellsbury and Hughes, WSI obtained
Rogers’ resignation on December 22.
In her opening brief, plaintiff argues that the record is sufficient to support
a jury finding of employer liability because WSI “ should have known” before
December 1, 2000 that a sexually hostile work environment existed at its Casper
facility. See Aplt. Br. at 34 (emphasis in original). Alternatively, plaintiff argues
that WSI was negligent in not preventing the touching incident on December 2
because it failed to take immediate action against Rogers based on the
information it learned from plaintiff on December 1. Id. at 31, 33, 36. Both of
these arguments are without merit.
To begin with, as noted above, there must be evidence of pervasive sexual
harassment in the workplace before an employer may be deemed to have
constructive knowledge of the harassment, see Ford , 222 F.3d at 776, 777, and
this requires acts of harassment “so egregious, numerous, and concentrated as to
add up to a campaign of harassment,” id. at 777 (quotation omitted). In this case,
there is insufficient evidence in the record to support an inference that WSI had
constructive knowledge of sexual harassment at its Casper facility prior to
December 1, 2000. 10
10
In her opening brief, plaintiff also suggests that constructive knowledge can
be imposed on WSI because its sexual harassment policy deterred victims of
(continued...)
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We also conclude that no rational jury could find that WSI’s investigation
was inadequate because it failed to take affirmative action against Rogers within
twenty-four hours of plaintiff’s first reports of harassment on December 1.
C. Retaliation.
Plaintiff’s retaliation claim is based on 42 U.S.C. § 2000e-3(a), 11
and we
analyze the claim under the McDonnell Douglas burden-shifting framework. See
Wells v. Colo. Dep’t of Transp. , 325 F.3d 1205, 1212 (10th Cir. 2003) (citing
McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-03 (1973)).
Under that framework, Plaintiff must first establish a prima facie
case by showing “that: (1) [she] engaged in protected opposition to
discrimination; (2) [she] suffered an adverse employment action; and
(3) there is a causal connection between the protected activity and
the adverse employment action.” O’Neal v. Ferguson Constr. Co. ,
237 F.3d 1248, 1252 (10th Cir. 2001). “Once [Plaintiff] makes a
prima facie showing, [defendant] must articulate a legitimate,
nondiscriminatory reason for the adverse employment action.
[Plaintiff] must [then] respond by demonstrating [that defendant’s]
asserted reasons for the adverse action are pretextual.” Id. (internal
citation omitted).
Id. (alterations in original except for insertion of “defendant” where indicated).
10
(...continued)
harassment from reporting the offending conduct. See Aplt. Br. at 34-35.
Constructive knowledge cannot be inferred on that basis, however, because
plaintiff has made no showing that she or any other women at WSI’s Casper
facility failed to report sexual harassment because of WSI’s policy.
11
42 U.S.C. § 2000e-3(a) provides that “[i]t shall be an unlawful employment
practice for an employer to discriminate against any of his employees . . . because
[the employee] has opposed any practice made an unlawful employment practice
by this subchapter. . . .”
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We conclude that plaintiff failed to establish a prima facie case of
retaliation because she failed to show that she suffered an adverse employment
action. Accordingly, we affirm the entry of summary judgment on plaintiff’s
retaliation claim on that basis, and we do not need to address the other elements
of the prima facie case or the nondiscriminatory reason/pretext issues.
1. Written Reprimand and Performance Evaluation.
Plaintiff argues that the written reprimand that she received on December
11, 2000 and the negative performance evaluation that she received on December
12, 2000 were adverse employment actions that WSI took in retaliation for her
complaints regarding Rogers. We conclude that plaintiff failed to put forth
sufficient evidence to establish that either the reprimand or the performance
evaluation were adverse employment actions.
To establish an adverse employment action, the employee must demonstrate
that the employer’s conduct was “‘materially adverse’ to the employee’s job
status.” Wells , 325 F.3d at 1213 (quoting Sanchez v. Denver Pub. Schs. , 164 F.3d
527, 533 (10th Cir. 1998)). “Nevertheless, we will not consider a mere
inconvenience or an alteration of job responsibilities to be an adverse employment
action.” Sanchez , 164 F.3d at 532 (quotation omitted). Instead, to qualify as an
adverse employment action, the action must result in “a significant change in
employment status, such as . . . firing, failing to promote, reassignment with
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significantly different responsibilities, or a decision causing a significant change
in benefits.” Aquilino v. Univ. of Kan. , 268 F.3d 930, 934 (10th Cir. 2001)
(quoting Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 761 (1998)).
“[U]nsubstantiated oral reprimands and unnecessary derogatory comments
. . . are not included within the definition of adverse [employment] action absent
evidence that they had some impact on the employee’s employment status.”
Sanchez , 164 F.3d at 533 (quotation omitted); accord Wells , 325 F.3d at 1214.
Similarly, we have held that a satisfactory performance evaluation, although
lower than previous evaluations, was not an adverse employment action where the
employee “presented no evidence of adverse action relating to her evaluation.”
Meredith v. Beech Aircraft Corp. , 18 F.3d 890, 896 (10th Cir. 1994); see also
Smart v. Ball State Univ. , 89 F.3d 437, 442 (7th Cir. 1996) (holding that negative
performance evaluation was not an adverse employment action where employer
did not take any other action against employee); Sanders v. New York City Human
Res. Admin. , 361 F.3d 749, 756 (2d Cir. 2004) (same).
The written reprimand that WSI issued to plaintiff constituted a first step in
WSI’s progressive disciplinary process, and the reprimand expressly stated that
plaintiff could be suspended and/or terminated if she failed to comply with the
company’s sexual harassment policy in the future. But it is also undisputed that
WSI did not take any other action against plaintiff in connection with the
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reprimand. As a result, she has made no showing that the reprimand had any
immediate or practical effect on her job status. We therefore conclude that there
is insufficient evidence in the record to establish that the written reprimand was
an adverse employment action. See Oest v. Ill. Dep’t of Corr. , 240 F.3d 605, 613
(7th Cir. 2001) (holding that oral and written reprimands received by employee
pursuant to employer’s progressive disciplinary process did not implicate
sufficiently tangible job consequences to constitute an independent basis for
liability under Title VII, notwithstanding that each reprimand brought employee
closer to termination, absent evidence of any immediate consequence of the
reprimands, such as ineligibility for job benefits like promotion, transfer to a
favorable location, or an advantageous increase in responsibilities); Weeks v. New
York State (Div. of Parole) , 273 F.3d 76, 86 (2d Cir. 2001) (holding that an
employee who received a “notice of discipline” and a “counseling memo” did not
suffer an adverse employment action where employee did not allege any facts
showing a materially adverse change in her working conditions).
We reach the same conclusion with respect to the performance evaluation
that plaintiff received from Sulzen. Although Sulzen’s “high maintenance”
comment on page one of the evaluation appears to be directly related to plaintiff’s
complaints about Rogers, see Aplt. App. at 264 (p. 48), plaintiff has conceded
that Sulzen “otherwise gave her satisfactory or good marks on her work
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performance,” Aplt. Br. at 14. In addition, while plaintiff claims in her opening
brief that “the performance evaluation was key to [WSI’s] decision not to give
[her] a raise at the 90-day point [of her employment],” id. at 38, plaintiff’s
assertion regarding the raise is not supported by any evidence in the record. To
the contrary, the record is devoid of any evidence showing that the performance
evaluation had an adverse effect on plaintiff’s job status. Thus, we conclude that
plaintiff failed to show that the performance evaluation constituted an adverse
employment action.
2. Co-Worker Hostility and Retaliatory Harassment.
Plaintiff testified at her deposition that she was “shunned” by her co-
workers as a result of her complaints regarding Rogers. See Aplt. App. at 58
(p. 84). While plaintiff has not explicitly pled a cause of action based on co-
worker retaliation, it also appears that the allegations in plaintiff’s original and
first amended complaints are broad enough to state a claim under Title VII for co-
worker retaliation. See R. Doc. 1 at 10-12; Aplt. App. at 153-56, 160.
We have recognized that “co-worker hostility or retaliatory harassment, if
sufficiently severe, may constitute ‘adverse employment action’ for purposes of a
retaliation claim.” Gunnell v. Utah Valley State Coll. , 152 F.3d 1253, 1264 (10th
Cir. 1998). But “an employer can only be liable for co-workers’ retaliatory
harassment where its supervisory or management personnel either
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(1) orchestrate[d] the harassment or (2) [knew] about the harassment and
acquiesce[d] in it in such a manner as to condone and encourage the co-workers’
actions.” Id. at 1265.
In her opening brief, plaintiff asserts that Prather “falsely leaked to
[Achenbach] that she had accused [him] of being the perpetrator of the condoms
and pictures, with the predictable effect of making her an instant pariah among
her contemporaries.” Aplt. Br. at 29. However, plaintiff has failed to put forth
any specific facts or evidence from which a jury could infer that any of her
supervisors acted with the intent to orchestrate or condone or encourage co-
worker hostility or retaliatory harassment. See Gunnell , 152 F.3d at 1265 (noting
that co-worker harassment “must be intentional on the part of the employer”). As
a result, there is insufficient evidence in the record to support a claim against
WSI based on co-worker hostility or retaliatory harassment. Thus, we do not
reach whether she has alleged sufficient severity of co-worker hostility to rise to
the level of adverse employment action.
D. Constructive Discharge.
In her original complaint, plaintiff alleged as part of her retaliation claim
that she was constructively discharged from her job at WSI. See R., Doc. 1 at 12.
“Constructive discharge, like actual discharge, is a materially adverse
employment action.” EEOC v. Univ. of Chicago Hosps. , 276 F.3d 326, 331 (7th
-26-
Cir. 2002). It also appears that plaintiff asserted constructive discharge as a
separate and independent cause of action in her first amended complaint. See
Aplt. App. at 159. Regardless of whether we analyze plaintiff’s constructive
discharge claim as part of her retaliation claim or as a separate and independent
cause of action, we conclude that WSI was entitled to summary judgment on the
claim.
“In the typical Title VII constructive discharge case, the plaintiff asserts
she was forced from her job due to the alleged sex discrimination. However, we
have found constructive discharge based on retributive acts that follow a
complaint of sex discrimination.” Jeffries v. Kansas , 147 F.3d 1220, 1233 (10th
Cir. 1998). Plaintiff’s constructive discharge claim falls into the latter category,
but this does not affect the showing that she must make in order to raise triable
issues of fact on the claim.
In order to make out a constructive discharge claim, [a
plaintiff] must allege facts sufficient to demonstrate under an
objective test that a reasonable person would have viewed her
working conditions as intolerable. The plaintiff’s subjective view of
the employment environment and the employer’s subjective intent
with regard to discharging her are both irrelevant. If an employee
resigns of her own free will, even as a result of the employer’s
actions, that employee will not be held to have been constructively
discharged. Essentially, a plaintiff must show that she had no other
choice but to quit.
Id. (quotation and citations omitted); see also Derr v. Gulf Oil Corp. , 796 F.2d
340, 344 (10th Cir. 1986) (noting that “the question on which constructive
-27-
discharge cases turn is simply whether the employer by its illegal discriminatory
acts has made working conditions so difficult that a reasonable person in the
employee’s position would feel compelled to resign”). Consequently, “[t]he
question is not whether [plaintiff’s] resignation resulted from [WSI’s] actions, but
whether [plaintiff] had any other reasonable choice but to resign in light of those
actions.” Tran v. Trs. of the State Colls. in Colo. , 355 F.3d 1263, 1270 (10th Cir.
2004).
There is no question that the work environment at WSI was unpleasant for
plaintiff between December 1 and December 18 or 19, 2000. We nonetheless
conclude that no rational jury could find that a reasonable person would have felt
compelled to resign as the only feasible option. Most importantly, it is
undisputed that Rogers did not engage in any additional offensive conduct after
plaintiff reported the offensive touching incident that occurred on December 2.
See Aplt. App. at 57 (p. 80).
Finally, plaintiff’s subjective belief that she was shunned by her co-workers
is irrelevant to our analysis of her constructive discharge claim. See Heno v.
Sprint/United Mgmt. Co. , 208 F.3d 847, 857-58 (10th Cir. 2000) (holding that an
employee’s subjective belief that her co-employees were isolating her was not
relevant to constructive discharge claim); Sanchez , 164 F.3d at 534 (noting that
“the plaintiff’s subjective views of the situation are irrelevant”) (quotation
-28-
omitted). Instead, we must focus exclusively on the objective evidence in the
record. Having done so, we conclude that plaintiff failed to put forth sufficient
objective evidence to support her claim that the conduct of her co-workers made
her job intolerable within two weeks of her reporting the touching incident.
The judgment of the district court is AFFIRMED.
Entered for the Court
David M. Ebel
Circuit Judge
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