Chavez v. State of New Mexico

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 2 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

MARIA CONSUELO CHAVEZ, DIANE
CONTRERAS, LORI LUCERO, OLGA
RODRIGUEZ, and TERESA SMITH,

Plaintiffs-Appellants,

and No. 02-2224

MELANIE SCHIPPER,

Plaintiff,

v.

STATE OF NEW MEXICO d/b/a
Children, Youth and Families
Department; DEBORAH L. HARTZ,
Secretary, New Mexico Children Youth
and Families Department; ART
MURPHY, individually and as Director,
Juvenile Justice Division, New Mexico
Children, Youth and Families
Department; LEROY GARCIA,
individually and as Deputy Director,
Juvenile Justice Division, New Mexico
Children, Youth and Families
Department, New Mexico Boys’ School;
MARTIN B. BOCHENEK, individually
and as Correction Administrator II, New
Mexico Children, Youth and Families
Department, Juvenile Justice Division,
New Mexico Boys’ School; DANNY
CRUZ, individually and as Correction
Administrator II, New Mexico Children,
 Youth and Families Department, Juvenile
Justice Division, New Mexico Boys’
School; GLEN HILL, individually and as
Staff Development Specialist, New
Mexico Children, Youth and Families
Department; KARL KOCH, individually
and as a Juvenile Corrections Officer of
the New Mexico Children, Youth and
Families Department, Juvenile Justice
Division, New Mexico Boys’ School,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 00-423 JC/WWD-ACE)

Dennis W. Montoya, Albuquerque, New Mexico, for Plaintiffs-Appellants.

Mark E. Komer, (Judith C. Herrera, on the brief) Herrera, Long, Pound & Komer,
P.A., Santa Fe, New Mexico, for Defendants-Appellees.

Before LUCERO , McCONNELL , and ANDERSON, Circuit Judges.

McCONNELL , Circuit Judge.

This case stems from the harassing and allegedly discriminatory conduct

that male employees of the New Mexico Boys’ School (“School”) inflicted on

their female colleagues and subordinates. The School is operated by New

Mexico’s Children, Youth and Families Department (“CYFD”). Plaintiffs Maria

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Consuelo Chavez, Diane Contreras, Lori Lucero, Olga Rodriguez, and Teresa

Smith (collectively “Plaintiffs”) appeal three district court rulings. First, they

appeal the district court’s refusal to enforce an alleged settlement agreement in

which Defendants promised to pay Plaintiffs $60,000 in exchange for Plaintiffs’

release of all claims. Second, Plaintiffs claim the district court erred by granting

summary judgment in Defendants’ favor on Plaintiffs’ race discrimination, sexual

harassment, retaliation, and 42 U.S.C. § 1983 claims. Third, Plaintiffs claim the

district court erred when it refused to disqualify Defendants’ attorney for

potential conflicts of interest resulting from the fact that one defense attorney

represented both the CYFD and the multiple individual Defendants in their

individual and official capacities.

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district

court’s refusal to enforce the settlement agreement. We also AFFIRM its grant

of summary judgment on Plaintiffs’ racial discrimination, retaliation, and § 1983

claims. We REVERSE in part, however, the district court’s grant of summary

judgment on Plaintiffs’ sexual harassment claims. Finally, we AFFIRM the

district court’s refusal to disqualify Defendants’ attorney.

I.

Plaintiffs Chavez, Contreras, Lucero, and Smith were all state employees at

the New Mexico Boys’ School. Ms. Chavez was a human resources administrator,

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Ms. Contreras was a social worker supervisor, Ms. Lucero was a social worker,

and Ms. Smith was a psychologist. Plaintiff Rodriguez worked for a private

corporation, Best’s Inc., which operated the School’s food services division.

The Defendants central to the case were also state employees at the School.

Martin Bochenek and Danny Cruz were both correctional administrators, Glen

Hill was a staff development specialist, and Karl Koch was a juvenile corrections

officer. Deborah Hartz was Secretary of the CYFD during the events in question,

and Art Murphy was Juvenile Justice Division; neither had any personal

involvement. The CYFD is also a defendant.

The New Mexico Boys’ School hired defendant Martin Bochenek in 1999

to implement a new program known as EQUIP. The harassing conduct on which

Plaintiffs base their suit began shortly after Mr. Bochenek was hired, and

continued until at least April 2000 and possibly as late as May 2001. As we will

discuss in greater detail below, Plaintiffs’ evidence demonstrates that Mr.

Bochenek engaged in at least some gender-based harassment, as well as numerous

acts that were hostile and threatening but not necessarily based on gender. Mr.

Bochenek also uttered two opprobrious racial epithets that Plaintiffs allege rose to

the level of actionable racial discrimination.

These episodes led Plaintiffs to file multiple claims with the EEOC. As a

result of these filings, New Mexico’s Children, Youth and Families Department

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(“CYFD”) conducted internal investigations at the School. Plaintiffs eventually

received an EEOC right to sue notice and filed a complaint on March 22, 2000,

and an amended complaint on June 6, 2000. Defendants moved for summary

judgment in July 2001. The parties reached a settlement agreement on October 8,

2001. Defendants agreed to pay $60,000, and Plaintiffs agreed to release all

claims. But on October 5, 2001—while the parties were negotiating the final

details of the October 8 settlement—Plaintiff Contreras filed a second

discrimination lawsuit against the CYFD. Defendants’ attorney did not learn of

this second suit until shortly after the parties reached the October 8 agreement.

On October 19, 2001, Defendants’ attorney refused to pay the $60,000 unless Ms.

Contreras dropped her second suit. Ms. Contreras insisted on pursuing the second

claim, and the settlement fell apart.

Following the meltdown, Plaintiffs moved to enforce the settlement

agreement. The district court denied their motion. Their case thus revived,

Plaintiffs responded to the summary judgment motion Defendants had filed in

July 2001. Soon after, Plaintiffs filed a motion to disqualify Defendants’

attorney, claiming the State’s decision to abandon settlement conflicted with the

individual Defendants’ best interests. The district court, unpersuaded, denied

Plaintiffs’ disqualification motion at the same time it granted summary judgment

for Defendants. This appeal followed.

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 II.

A. The Settlement Agreement

Plaintiffs claim the district court erred when it refused to enforce the

October 8, 2001 settlement agreement. We review a district court’s decision on

the enforcement of a settlement agreement for abuse of discretion, Feerer v.

Amoco Prod. Co. , 242 F.3d 1259, 1262 (10th Cir. 2001), but its interpretation of a

settlement agreement de novo. Scrivner v. Sonat Exploration Co. , 242 F.3d 1288,

1291 (10th Cir. 2001).

Generally, “the enforcement and interpretation of settlement agreements in

Title VII cases are governed by federal common law because such settlements are

‘inextricably linked’ to the underlying law of Title VII.” Heuser v. Kephart , 215

F.3d 1186, 1190 (10th Cir. 2000), quoting Snider v. Circle K Corp. , 923 F.2d

1404, 1407 (10th Cir. 1991). In Heuser , however, we construed a Title VII

settlement agreement under New Mexico law because the parties agreed state law

governed and, more importantly, the “applicable principles of contract law are not

different in federal and New Mexico law.” Id. at 1191. In this case, all parties

agree that New Mexico contract law applies, See Appellants’ Br. at 14; Appellees’

Br. at 13, and we proceed accordingly.

Contracts in New Mexico, like other states, “must be factually supported by

an offer, an acceptance, consideration, and mutual assent.” Heye v. Am. Golf

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Corp., Inc. , 80 P.3d 495, 498 (N.M. Ct. App. 2003). Even if a valid contract is

formed, however, “rescission is allowed where there has been a misrepresentation

of a material fact, the misrepresentation was made to be relied on, and has in fact

been relied on.” Hendren v. Allstate Ins. Co. , 672 P.2d 1137, 1140 (N.M. Ct.

App. 1983). If a material misrepresentation is made or material information

withheld, it does not matter whether the culpable party acted fraudulently,

negligently, or innocently; rescission may follow. Id.

Although the district court offered no reason for its denial of the Plaintiffs’

motion, we may affirm on any grounds supported by the record, V-1 Oil Co. v.

Utah State Dept. of Public Safety, 131 F.3d 1415, 1422 (10th Cir. 1997), and

there are plenty. To pick just one, the record indicates that Plaintiffs’ counsel

withheld material information from Defendants’ attorney while negotiating the

October 8, 2001 settlement: namely, that Ms. Contreras had filed a second suit on

October 5, 2001. The existence of a second, undisclosed suit, similar to the one

the parties were attempting to settle, was obviously a material fact. Thus,

whether Plaintiffs’ counsel acted “fraudulently, negligently, or innocently” by

withholding that fact, Defendants were entitled to rescind the agreement,

Hendren , 672 P.2d at 1140, and the district court properly refused to enforce it.

Plaintiffs now ask the Court to view the $60,000 settlement agreement as

five separate agreements, presumably $12,000 per plaintiff. According to this

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view, “settlement was achieved, at [a] minimum with respect to four out of five

Plaintiffs, as to all Defendants,” Reply Br. at 2, and the four agreements should

be enforced accordingly. At the hearing on Plaintiffs’ motion to enforce the

settlement, however, Plaintiffs took precisely the opposite position. When asked

by the court whether each plaintiff had an agreement to receive $12,000 out of the

$60,000 settlement, Plaintiffs’ counsel demurred: “I received joint authority from

all five Plaintiffs . . . . It is not an agreement that each one gets a settlement.”

Appellants’ App. at 262. Moreover, Plaintiffs cite no evidence suggesting that

the parties contemplated anything short of a global settlement that would

discharge the liabilities of all Defendants and satisfy the claims of all Plaintiffs.

We therefore find no merit in Plaintiffs’ claims.

B. Title VII Claims

As discussed above, Plaintiffs allege Defendants violated Title VII by

subjecting them to racial and sexual discrimination and by retaliating against them

for reporting the alleged discrimination. Plaintiffs also seek damages under 42

U.S.C. § 1983. We review the district court’s decision de novo, drawing all

inferences in favor of the party opposing summary judgment. Penry v. Fed. Home

Loan Bank of Topeka , 155 F.3d 1257, 1261 (10th Cir. 1998). We address in turn

each category of claims.

1. Race Discrimination

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 Ms. Chavez, Ms. Contreras, and Ms. Lucero allege Mr. Bochenek subjected

them to a racially hostile work environment because they are Hispanic.

Title VII forbids employment discrimination on the basis of race or national

origin. 42 U.S.C. § 2000e-2(a)(1). To survive summary judgment on a racially

hostile work environment claim, a plaintiff must show “that under the totality of

the circumstances (1) the harassment was pervasive or severe enough to alter the

terms, conditions, or privilege of employment, and (2) the harassment was racial

or stemmed from racial animus.” Bolden v. PRC Inc. , 43 F.3d 545, 551 (10th Cir.

1994) (citation omitted). A plaintiff cannot meet this burden by demonstrating “a

few isolated incidents of racial enmity” or “sporadic racial slurs.” Id. , quoting

Hicks v. Gates Rubber Co. , 833 F.2d 1406, 1412–13 (10th Cir. 1987). Instead,

“there must be a steady barrage of opprobrious racial comments.” Id.

Plaintiffs allege that Mr. Bochenek made two racially offensive remarks.

First, Mr. Bochenek accused Ms. Chavez of belonging to a “clica,” which

Plaintiffs claim “refer[s] to a Hispanic clique.” Appellants’ App. at 431.

Plaintiffs do not clarify whether “clica” is a derogatory term for a clique of

Hispanic individuals or simply the Spanish translation of “clique.” Second, Mr.

Bochenek called one of Ms. Lucero’s Caucasian friends and coworkers a “spic

lover” in Ms. Lucero’s presence. Id. at 482.

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 These two comments fall far short of the “steady barrage” required for a

hostile environment claim. We do not condone Mr. Bochenek’s remarks. But

given their exiguity, we cannot say that Mr. Bochenek’s conduct “was pervasive

or severe enough to alter the terms, conditions, or privilege[s]” of Plaintiffs’

employment. Bolden , 43 F.3d at 551.

In addition, Ms. Contreras alleges racial discrimination because she was the

only Hispanic female directly in Mr. Bochenek’s chain of command. Appellant’s

App. at 465. That is insufficient to withstand summary judgment; simply being

the lone member of an identifiable racial or ethnic minority within a supervisor’s

chain of command, without more, does not demonstrate racial animus. Cf. Gross

v. Burggraf Constr. Co. , 53 F.3d 1531, 1543 (10th Cir. 1995) (“The mere fact that

only two women employees remained on the job at the end of the season does not

support an inference that [a male supervisor] created a hostile work environment

for [the plaintiff] and the other female employees . . . .”). Therefore, we AFFIRM

the district court’s grant of summary judgment on Plaintiffs’ racial discrimination

claim.

2. Sexual Harassment

Title VII prohibits “ discriminat[ion] against any individual with respect to

his compensation, terms, conditions, or privileges of employment, because of such

individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). In Meritor Savings Bank, FSB

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v. Vinson , 477 U.S. 57, 66 (1986), the Supreme Court held that “a plaintiff may

establish a violation of Title VII by proving that discrimination based on sex has

created a hostile or abusive work environment.” However, not all harassment

creates a hostile work environment; the harassment must be “sufficiently severe

or pervasive to alter the conditions of [the victim’s] employment.” Id. at 67

(internal quotation marks omitted) (alteration in original). Severity and

pervasiveness are evaluated according to the totality of the circumstances, Harris

v. Forklift Sys., Inc. , 510 U.S. 17, 23 (1993), considering such factors as “the

frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.” O’Shea v.

Yellow Technology Services, Inc., 185 F.3d 1093, 1098 (10th Cir. 1999), quoting

Harris , 510 U.S. at 23.

But severity and pervasiveness are not enough. The “plaintiff must produce

evidence that she was the object of harassment because of her gender .” Penry ,

155 F.3d at 1261 (emphasis added). Title VII is not a code of workplace conduct,

nor was it “designed to bring about a magical transformation in the social mores

of American workers,” Gross , 53 F.3d at 1538. Title VII targets discrimination.

Thus, a hostile environment claim requires a showing not only of severe and

pervasive harassment, but of severe and pervasive harassment based on gender.

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 This case is difficult because, although the harassment at issue was

undoubtedly severe and pervasive, only some of it was gender-based. The

question then becomes whether Plaintiffs can use a substantial amount of

arguably gender-neutral harassment to bolster a smaller amount of gender-based

conduct on summary judgment. Our precedents say that they can: “ Facially

neutral abusive conduct can support a finding of gender animus sufficient to

sustain a hostile work environment claim when that conduct is viewed in the

context of other, overtly gender-discriminatory conduct.” O’Shea, 185 F.3d at

1097. This is because what is important in a hostile environment claim is the

environment , and gender-neutral harassment makes up an important part of the

relevant work environment. Conduct that appears gender-neutral in isolation may

in fact be gender-based, but may appear so only when viewed in the context of

other gender-based behavior. Penry , 155 F.3d at 1262. Thus, when a plaintiff

introduces evidence of both gender-based and gender-neutral harassment, and

when a jury, viewing the evidence in context, “reasonably could view all of the

allegedly harassing conduct . . . as the product of sex and gender hostility,” then

“it is for the fact finder to decide whether such an inference should be drawn.”

O’Shea , 185 F.3d at 1102, 1097 (emphasis omitted).

Plaintiffs allege a number of gender-based incidents. One of the first

occurred at a June 1999 EQUIP training meeting, during which Mr. Bochenek

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engaged in gender-based harassment of Ms. Contreras, Ms. Lucero, and Ms.

Smith. Although the record does not reveal precisely what took place, Defendants

concede for summary judgment purposes that Mr. Bochenek verbally abused

Plaintiffs and subjected them to demeaning treatment because of their gender.

Another incident took place while Ms. Chavez was visiting Mr. Bochenek’s office

on October 18, 1999. Mr. Bochenek situated himself in a chair “in an

intimidating, forcefully seductive manner (almost vulgar)” and asked Ms. Chavez

to go “Trick or Treating with him and his children.” Appellants’ App. at 139.

Mr. Bochenek told Ms. Chavez it would be a “real experience.” Id. This

invitation—in other contexts, a benign expression of cordiality—alarmed Ms.

Chavez because Mr. Bochenek had recently told her he needed to be “firm” with

her and because his “facial expression and the look in his eyes was that of

someone who was trying to be seductive.” Id. at 139–40.

The new year brought no change in Mr. Bochenek’s behavior. On February

24, 2000, Mr. Bochenek purposefully rubbed the front side of his body against

Ms. Lucero’s backside while she was collecting her mail in the mail room. On

March 30, 2000, Ms. Lucero visited Mr. Bochenek’s office. While there, Ms.

Lucero was trying to explain her paperwork to Mr. Bochenek, but “he would not

make eye contact with her as he was too involved looking at the rest of her body.”

Id. at 150. On April 6, 2000, Mr. Bochenek walked close behind Ms. Contreras

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while she was in the mail room and, half under his breath, called her a “fucking

bitch.” Id. at 146, 469. Later that day, Ms. Lucero and Ms. Contreras went to the

mail room together. While Ms. Lucero was reading her mail, Ms. Contreras

suddenly and urgently prompted her to leave the room. Ms. Lucero looked up

from her mail and noticed Mr. Bochenek standing closely behind her, “staring at

her in a lewd and lascivious manner.” Id. at 151. As Ms. Lucero attempted “to

get past [Mr. Bochenek] to exit the room, she noticed defendant Bochenek

massaging his genitals, which he continued to do as she exited the room.” Id.

Finally, in May 2001, Ms. Contreras alleges that Mr. Bochenek sexually

propositioned her in exchange for not issuing a reprimand letter.

In addition to these perpetrator-specific incidents, Plaintiffs complain of

two anonymous gender-based episodes. First, on February 29, 2000, Ms. Lucero

discovered someone had scratched her name off her mailbox and replaced it with

“bitch.” Id. at 150, 481. This was apparently the first of several such

occurrences. Second, on May 2, 2000, Ms. Chavez, Ms. Contreras, Ms. Lucero,

and Ms. Smith each received, through the United States mail, a plain letter-sized

envelope containing pornographic images. The pictures were of male genitalia;

attached to each were white stickers that read “eat me bitch,” “bite me,” and

“fuck me.” We mention these two incidents but give them limited weight because

Plaintiffs provided no evidence linking these incidents to the individual

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Defendants.

Plaintiffs also cite multiple incidents of hostile and physically threatening

conduct not necessarily connected to gender. For example, Defendants admit that

after Ms. Rodriguez reported School correctional officers were taking extra food

from the School cafeteria, Mr. Hill and Mr. Koch used a “training exercise” as a

pretext “to physically attack plaintiff Rodriguez, resulting in permanent or

prolonged serious physical injury.” Mr. Cruz then contacted Ms. Rodriguez’s

employer and accused her of knowingly hiring illegal Mexican nationals; after

investigating, her employer determined these allegations were false. On another

occasion, Mr. Bochenek pursued Ms. Chavez on the interstate, driving in an

aggressive and dangerous manner and placing her in fear of her own safety and

that of her passenger. Ms. Chavez also received a death threat on her answering

machine; the caller disguised his voice and told her to “prepare to die.” The New

Mexico State Police traced this call to Mr. Cruz’s office.

Plaintiffs allege other incidents of harassment that, while arguably gender-

neutral, interfered with their work performance or otherwise altered the

conditions of their employment. Ms. Lucero received a letter of reprimand at Mr.

Bochenek’s insistence, even though her immediate supervisors found Mr.

Bochenek’s allegations were unsubstantiated. Ms. Smith, in turn, had her files

audited four times by outside auditors—at Mr. Bochenek’s request—after she

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filed this lawsuit. Mr. Bochenek and Mr. Cruz interfered with Ms. Smith’s

therapeutic relationships with her clients. For example, both men told several of

Ms. Smith’s clients that she had lied to them about getting them treatment or

parole; one of those clients later physically threatened Ms. Smith because he

thought she had lied to him. Mr. Bochenek also faulted Ms. Smith’s work for

trivial or non-existent issues, holding her work to a higher standard than that of

her male counterparts. He nit-picked Ms. Lucero’s work and assigned her case

management duties without a corresponding salary increase. He gave Ms.

Contreras lengthy assignments which he then deemed unimportant and refused to

collect. And he gave Ms. Smith tasks outside her job description and demeaned

her intelligence. In the end, even Mr. Cruz joined in, criticizing Ms. Chavez’s

work for minor issues and taking away job duties she regularly performed.

Finally, Plaintiffs point to two additional incidents of harassment which

they allege occurred in retaliation for filing this lawsuit. Although their

retaliation claim ultimately fails, see infra at 24-26, these incidents are still

relevant to the hostile environment claim. First, on April 7, 2000, Mr. Cruz made

copies of a newspaper article describing Plaintiffs’ lawsuit and distributed the

copies to all employee mailboxes and to an orientation class for new employees.

According to Plaintiffs, this caused other School employees to treat them

differently, whispering behind their backs and shunning them “as if [they] had a

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contagious deadly disease.” Id. at 470. Ms. Chavez also alleges that, while the

EEOC complaint was pending, Mr. Bochenek feigned friendship with her in an

attempt to acquire confidential information about the proceedings. When she

refused to answer his questions, he became angry and tried to intimidate her.

Despite this laundry list of gender-based and threatening, gender-neutral

harassment, most of which occurred within one year of the June 1999 EQUIP

training meeting, the district court found that “Plaintiffs fail[ed] to demonstrate

that Defendant Bochenek’s actions were sufficiently severe and pervasive ‘to alter

the conditions of [Plaintiffs’] employment, and create an abusive working

environment.’” Appellants’ App. at 543–44. According to the court, the instances

of gender-based harassment, “though unpleasant, would not interfere with a

reasonable person’s work performance, for they do not reek of a sexually hostile

working environment, as they were not physically threatening, severe or

pervasive.” Id. at 544. Of the many instances of arguably gender-neutral

harassment, the district court considered only one: it found that Mr. Bochenek’s

pursuit of Ms. Chavez on the highway was not gender-based and therefore not

actionable. Id. In conclusion, the court noted that “Bochenek’s and Cruz’s

behavior cannot be deemed actionable sexual harassment, for a male co-worker

took Family and Medical Leave due to his ‘anxiety and depression over the

constant belittling that Bochenek and Cruz did to him.’ These Defendants, thus,

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seem not to discriminate between who they wish to intimidate.” Id.

We hold the district court erred by granting summary judgment in favor of

all defendants on all claims. Instructive in this regard is our decision in O’Shea ,

185 F.3d 1093, in which we reversed a grant of summary judgment for the

defendants where both the gender-based and arguably gender-neutral harassment

were less severe and pervasive than they are here. In O’Shea , the plaintiff

overheard the defendant making fun of his wife and making derogatory comments

about women in general. Id. at 1098. She also overheard the defendant

describing a dream he had in which he watched a woman jumping naked on a

trampoline. Id. On another occasion, the defendant allegedly said, “Playboy is

superior to a wife because at least with Playboy you get variety.” Id. And the

defendant also told several coworkers that the plaintiff was going to file a sexual

harassment suit against him, which, according to the plaintiff, caused her

coworkers to treat her badly. Id. at 1099. Finally, the plaintiff reported that two

other coworkers “made derogatory comments about women jokingly all the time.”

Id.

In light of this gender-based harassment, we found that a reasonable jury

could infer that other, facially gender-neutral conduct was also gender-based. Ms.

O’Shea complained that male coworkers never invited her to lunch unless she

invited herself; male coworkers avoided discussing technical matters with her and

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became generally uncommunicative; and one male coworker entered her cubicle

and shouted that the plaintiff was doing things incorrectly and was “going to

screw up the whole system.” Id. Furthermore, the plaintiff was refused access to

passwords that were necessary for her work; coworkers refused to explain

important work projects to her; and a male coworker was permitted to attend a

programming class from which the plaintiff was excluded. Id. at 1100. When the

plaintiff complained to her supervisors they were indifferent, if not resistant. One

supervisor refused to acknowledge the problem and told the plaintiff to “take a

vacation and get a tan.” Id. Another yelled at her, “Can’t you see that you’re the

problem?” Id. at 1100-01. Finally, during a discussion of the problem with her

most trusted supervisor, the supervisor yelled, “What I see before me is an

extremely paranoid person totally lacking in self-confidence.” Id. With that, the

plaintiff resigned.

Examining the evidence as a whole, we reversed the district court’s grant of

summary judgment. We found that

the obviously sex and gender-motivated conduct—including Mr.
Jones’ comparison of his wife to a Playboy magazine, his description
of his dream, his remarks that Plaintiff was going to file a sexual
harassment suit against him, and Mr. Jones’ and others’ derogatory
comments about women—so poisoned the entire body of conduct
toward Plaintiff that a jury reasonably could view all of the allegedly
harassing conduct . . . as the product of sex and gender hostility.

Id. at 1102 (emphasis supplied). We also found that the entire body of conduct

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created a genuine issue of material fact as to severity and pervasiveness, and

summary judgment was therefore improper. Id.

Plaintiffs in this case have presented considerably stronger evidence of a

hostile work environment than the plaintiff in O’Shea . In O’Shea , the gender-

based conduct consisted almost exclusively of derogatory comments about

women, many of which were not even directed at the plaintiff. Here, Mr.

Bochenek sexually propositioned Ms. Contreras in exchange for not issuing a

reprimand letter. He stood close behind Ms. Lucero in the mail room, staring at

her lewdly and massaging his genitals as she tried to exit; on another occasion he

purposefully rubbed the front side of his body against her backside while she was

collecting her mail. Finally, he called Ms. Contreras a “fucking bitch” and made

a lewd, seductive invitation to Ms. Chavez for a “real experience.” All of this

conduct is substantially more severe than that in O’Shea .

From this conduct, a jury could infer that the arguably gender-neutral

harassment—which was also more severe in this case than in O’Shea —was in fact

based on gender. In O’Shea , coworkers failed to invite the plaintiff to lunch;

here, Mr. Cruz left a death threat on Ms. Chavez’s answering machine. In

O’Shea , coworkers avoided discussing technical matters and became generally

uncommunicative with the plaintiff; here, coworkers incited a plaintiff’s clients

against her and issued unwarranted letters of reprimand. In O’Shea , a coworker

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loudly informed the plaintiff that she was doing her work incorrectly; here, Mr.

Bochenek engaged in a dangerous, high-speed chase of Ms. Chavez on the

highway. Of course, it is difficult to compare scenarios on the basis of

descriptions on paper. Every workplace is different. But the point is that in light

of our precedents, there is a material issue of fact as to whether Plaintiffs faced

gender-based harassment severe and pervasive enough to alter the conditions of

their employment. The district court’s sweeping grant of summary judgment was

therefore inappropriate.

This does not mean Plaintiffs’ case is without its weaknesses. Plaintiffs

point to several examples of gender-based harassment perpetrated by Mr.

Bochenek; from this, a reasonable jury could infer that other incidents involving

Mr. Bochenek—such as his high-speed chase of Ms. Chavez—though facially

neutral, were also motivated by gender. But it is a far greater inferential leap to

impute Mr. Bochenek’s motive to the facially neutral conduct of other employees ,

such as Messrs. Cruz, Hill, and Koch. For example, Hill and Koch used a training

exercise as a pretext to physically assault Ms. Rodriguez. This occurred shortly

after Ms. Rodriguez reported that correctional officers (of whom Koch was one)

were taking extra food from the school cafeteria. In spite of the fairly obvious

inference that Hill and Koch were motivated by Ms. Rodriguez’s whistle-blowing,

Plaintiffs ask us to infer instead that they were motivated by gender; and this

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simply because Mr. Bochenek, who had nothing to do with the assault, was

motivated by gender on separate occasions. No reasonable jury could make this

inference.

Mr. Cruz presents a similar, although less acute, problem. Mr. Cruz

allegedly left the death threat on Ms. Chavez’s answering machine and nit-picked

her work, accused Ms. Rodriguez of hiring illegal immigrants, interfered with Ms.

Smith’s client relationships, and disseminated to all employees copies of a

newspaper article regarding this lawsuit. Most of this conduct is facially neutral;

the dissemination of the newspaper article, however, is not. We considered

similar conduct in O’Shea 1 to be gender-based, and the same rationale applies

here: the alleged effect of the conduct was to punish plaintiffs for exercising their

Title VII rights by alienating them from their fellow employees. Furthermore, a

jury could infer a similar motive for the death threat, given the fact that Mr. Cruz

made it while Ms. Chavez was away from work testifying in depositions for this

lawsuit. Finally, it appears that Mr. Cruz worked in tandem with Mr. Bochenek to

interfere in Ms. Smith’s professional relationships; and the fact that Mr. Cruz

worked with Mr. Bochenek to do so makes it at least somewhat more likely that

he shared Mr. Bochenek’s illicit motive. We therefore conclude that a reasonable

1
The defendant told coworkers that the plaintiff was going to file a sexual
harassment suit against him. Id. at 1099.

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jury could conclude that Mr. Cruz’s conduct was gender-based.

Where does this leave us on summary judgment? Ms. Rodriguez’s claim

fails because it was based almost exclusively on Hill and Koch’s assault, as to

which, as we have said, plaintiffs introduced no evidence of gender-based

motivation. We therefore affirm the district court’s grant of summary judgment

on her claim. We also affirm the grant of summary judgment on Plaintiffs’ claims

against defendants Hartz and Murphy, against whom Plaintiffs have offered no

evidence. However, we reverse the district court’s grant of summary judgment on

the claims of Ms. Chavez, Lucero, Contreras, and Smith against Bochenek, Cruz,

and the CYFD. 2
As noted above, a reasonable jury could conclude that all of

Bochenek’s and Cruz’s harassment was gender-based; and when considered as a

whole, a reasonable jury could also conclude that the harassment was severe and

pervasive enough to alter the conditions of Plaintiffs’ employment.

3. Retaliation

Plaintiffs’ third Title VII claim arises under 42 U.S.C. § 2000e-3, which

“prohibits an employer from discriminating against an employee in retaliation for

2
Because the district court concluded that there was no hostile work
environment, it never reached the question of whether the CYFD could be held
liable for the actions of its employees. See generally Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664 (10th Cir. 1998). Neither party has argued the issue on appeal,
and we cannot decide it on the present record. We therefore leave the issue to the
district court on remand.

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opposing unlawful employment practices.” Penry , 155 F.3d at 1263, citing 42

U.S.C. § 2000e-3(a). A plaintiff establishes a prima facie case of Title VII

retaliation by showing that “(1) she engaged in protected opposition to Title VII

discrimination or participated in a Title VII proceeding; (2) she suffered an

adverse employment action contemporaneous with or subsequent to such

opposition or participation; and (3) there is a causal connection between the

protected activity and the adverse employment action.” Id. at 1263–64 (internal

quotation marks omitted). We liberally define the phrase “adverse employment

action,” but we have not delineated precise metes and bounds, preferring instead a

more flexible, case-by-case approach. Anderson v. Coors Brewing Co. , 181 F.3d

1171, 1178 (10th Cir. 1999). We have made clear, however, that “[r]etaliatory

conduct other than discharge or refusal to rehire is . . . proscribed by Title VII

only if it alters the employee’s ‘compensation, terms, conditions, or privileges of

employment,’ or ‘adversely affect[s] his [or her] status as an employee.’”

Sanchez v. Denver Pub. Sch. , 164 F.3d 527, 533 (10th Cir. 1998) (alteration in

original).

Plaintiffs’ appellate brief does not state which actions comprise the alleged

retaliation. Instead, it spends four pages discussing Owens v. Rush , 654 F.2d

1370 (10th Cir. 1981), where we held the plaintiff Undersheriff was within the

personal staff exception of 42 U.S.C. § 2000e(f) and thus outside Title VII

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coverage, without explaining why Owens aids their cause. This is sufficient

grounds to deem the issue waived. See Gaither v. Aetna Life Ins. Co. , 388 F.3d

759, 777 (10th Cir. 2004) (“[A]n issue listed, but not argued in the opening brief

is waived.”). Nevertheless, we have examined the district court’s opinion to

determine the basis for the retaliation claims and we find that they are meritless.

In the court below, Ms. Lucero and Ms. Smith claimed, and Mr. Bochenek

conceded, that he “gave them extra duties without commensurate pay.”

Appellants’ App. at 546. Ms. Contreras complained that, “although she received

a promotion after filing her complaint, she has yet to obtain the promised increase

in salary.” Id. Plaintiffs claimed their receipt of pornographic materials and Mr.

Cruz’s “placement of the newspaper article in their mailboxes detailing Plaintiffs’

suit constitutes retaliation.” Id. at 546–47. Finally, Ms. Contreras and Ms.

Lucero claimed they each received a letter of reprimand in retaliation for

participating in this suit. Id. at 547.

The district court dismissed Plaintiffs’ retaliation claim because they

“fail[ed] to demonstrate any actionable adverse employment actions.” Id. at 546.

This finding is arguably incorrect; Plaintiffs’ claims of additional duties or

enhanced responsibilities without commensurate pay increases could establish an

unlawful alteration of the “compensation, terms, conditions, or privileges” of

their employment. Sanchez , 164 F.3d at 533. The reason these claims fail,

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however, is that Plaintiffs have failed to demonstrate the requisite “causal

connection between the protected activity and the adverse employment action[s].”

Penry , 155 F.3d at 1264. The only incident where the evidence suggests even an

arguable causal connection to Plaintiffs’ protected activity was Mr. Cruz’s

dissemination of a newspaper article describing their sexual harassment suit; but

this incident did not alter the terms of Plaintiffs’ employment. We therefore

affirm the district court’s dismissal of Plaintiffs’ retaliation claims.

4. Section 1983 and Other Claims

In the proceedings below, Plaintiffs alleged multiple miscellaneous causes

of action, including violations of 42 U.S.C. § 1983, failure to adequately train and

supervise, assault and battery, and others. The district court found these claims

were

so inadequately represented, much less argued, that the Court refuses
to go on a fishing expedition in search of legal analysis and facts to
support these claims. . . . Moreover, to meet the summary judgment
burden, the non-movant must specify evidence in the record and
demonstrate the precise manner in which that evidence supports its
claims. In the present case, although Plaintiffs provide affidavits,
they leave it to this Court to determine how the affidavits are
relevant to their allegations in the complaint. Plaintiffs, thus, fail to
meet their burden under summary judgment.

Appellants’ App. at 549 (citation omitted).

The portion of Plaintiffs’ appellate brief devoted to these issues suffers

from the same shortcoming as their trial materials. The slightly more than one

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page of argument presented does not point us to record evidence that would allow

us to give proper or meaningful consideration to these claims. “Without a

specific reference, we will not search the record in an effort to determine whether

there exists dormant evidence which might require submission of the case to a

jury.” Gross , 53 F.3d at 1546 (internal quotation marks and citation omitted).

We thus AFFIRM the district court’s grant of summary judgment on these issues.

C. Dunton Conflicts

Finally, Plaintiffs argue the district court erred by refusing to disqualify

Defendants’ attorney. They claim defense counsel’s decision not to settle for

$60,000 created a conflict of interest between the State and the individual

defendants in their individual capacities. We review a district court’s decision on

a motion to disqualify counsel for abuse of discretion. McEwen v. City of

Norman , 926 F.2d 1539, 1550 (10th Cir. 1991).

Plaintiffs’ claim is based on Dunton v. County of Suffolk , 729 F.2d 903, 907

(2d Cir. 1984), in which one attorney defended both a governmental entity and an

individual defendant in his individual capacity in a § 1983 case. The County’s

defense—that its co-defendant police officer acted outside the scope of his

official duties—undermined the police officer’s good faith immunity defense,

thereby creating a conflict of interest between the attorney’s two clients. See id.

Neither plaintiff’s nor defendants’ counsel raised the conflict, although the

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Second Circuit noted that even plaintiff’s counsel “should . . . have been aware of

the problem and should have called it to the attention of the court.” Id. at 909. In

the end, the Second Circuit vacated the judgment against the police officer

defendant and remanded the case for a new trial because “the trial court had a

duty to inform [defendant] of the conflict.” Id. at 909.

A degree of skepticism is in order when one party seeks disqualification of

opposing counsel based on allegedly deficient representation of the opposing

party. In Dunton , the defendant benefitted when the court disqualified his

defense counsel because the result of the disqualification was reversal of a

decision in plaintiff’s favor; we are reluctant to allow Plaintiffs to employ a

similar motion to reverse a decision in Defendants’ favor. And in any event,

Plaintiffs have failed to present any evidence suggesting that Defendants’ attorney

took action to benefit the State or the CYFD at the individual Defendants’

expense. Absent evidence of a conflict of interest, we cannot conclude that the

district court abused its discretion by denying Plaintiffs’ disqualification motion.

We therefore AFFIRM the district court’s ruling on this issue.

III.

The district court’s refusal to enforce the settlement agreement was not an

abuse of discretion and is AFFIRMED . We also AFFIRM the grant of summary

judgment on Plaintiffs’ Title VII race discrimination, retaliation, and Section

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1983 claims. As to Plaintiffs’ Title VII sex discrimination claims, we AFFIRM

IN PART and REVERSE IN PART . The Title VII sex discrimination claims of

Plaintiffs Chavez, Contreras, Lucero, and Smith against Defendants Bochenek,

Cruz, and CYFD are REMANDED for proceedings as outlined above. Summary

judgment against Plaintiff Rodriquez and in favor of Defendants Hartz and

Murphy is AFFIRMED . Finally, because the district court did not abuse its

discretion when it denied Plaintiffs’ Dunton motion, this ruling is AFFIRMED .

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