F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 2, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
CON N IE M . C AR RA SC O,
Plaintiff-Appellant,
No. 05-3219
v. (District of K ansas)
(D.C. No. 04-CV-1166-M LB)
TH E B OEIN G CO M PA N Y ,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before M U RPH Y, EBEL, and M cCO NNELL, Circuit Judges.
I. Introduction
Appellant Connie Carrasco sued her former employer, The Boeing
Company (“Boeing”), for hostile w ork environment sexual harassment under Title
VII of the Civil Rights Act of 1964. The United States District Court for the
District of Kansas granted summary judgment to Boeing, concluding Carrasco
failed to produce sufficient evidence from which a reasonable jury could conclude
*
This order and judgment is not binding precedent, except under the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.
the alleged harassment was so severe or pervasive as to create Title VII liability.
Carrasco appeals, alleging the district court failed to properly consider all the
relevant evidence. W e exercise jurisdiction pursuant to 28 U.S.C. § 1291 and
affirm.
II. Background
Carrasco worked as an hourly employee for Boeing from 1987 until June
27, 2002. For a portion of this time, Carrasco’s second-level manager was James
Hans. Hans began his employment with Boeing in M ay 1988 and became a
manager in 1990. Carrasco alleges Hans engaged in a pattern of sexual
harassment that began in 1988 and continued until she left Boeing.
M any of the incidents upon which Carrasco relies to support her claim
occurred prior to June 2001. Carrasco asserts that in 1988 or 1989, Hans made
repeated comments about her feet, indicating he liked the way they looked in a
particular shoe and remarking they were “so tiny that it turns me on.” W hen Hans
moved from an hourly position to a managerial position at Boeing in 1990, he
indicated to Carraso that he would be earning more money and asked her to be his
mistress. According to Carrasco, she responded by laughing at Hans and rejecting
the offer. Notwithstanding the rebuff, Hans told Carrasco in 1992 that he
fantasized about the two of them “being together” and several years later asked
Carrasco to take a vacation day so they could “go get a hotel.” Carrasco also
alleges Hans once told her, “I can tell that you have gained weight because your
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jeans are tight in all the right places.” Carrasco could not recall the date on
which this comment was made although she testified it was some time between
1997 and 2002. In June 2000, while Hans and Carrasco were reviewing a
document in Hans’ office, Hans told Carrasco her perfume smelled good and then
sought the name of the fragrance so he could buy some for his wife.
Carrasco alleges Hans’ inappropriate behavior continued after June 2001.
Some time in the summer of 2001, Hans approached Carrasco and told her he
thought her shorts w ere shorter than permitted by Boeing’s dress code. Hans told
Carrasco it would be necessary for him to measure her shorts “from the inside of
[her] thigh.” The same summer, Hans asked Carrasco whether she tanned naked
and indicated he w ould like to see for himself whether she had any tan lines. H e
also leaned over the back of her shoulder and whispered that he liked her new
haircut. In the fall of 2001, Hans asked Carrasco several times to show him her
thong underw ear.
On M ay 8, 2002, Carrasco contacted Boeing’s in-house Equal Employment
Opportunity Department investigator, M ary Avila, about Hans’ behavior toward
her. Avila investigated Carrasco’s complaint but only considered incidents
occurring within the prior twelve-month period. After the investigation was
completed, Carrasco was told her claims could not be substantiated.
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Approximately one month after contacting Avila, Carrasco received notice
that she was being downgraded from her polisher position to a painter position. 1
As a painter, Carrasco would be assigned to work under H ans’ supervision.
Carrasco declined the painter position and, instead, accepted an accelerated
layoff. 2 Carrasco received a lump-sum layoff benefit and forfeited any right to be
recalled by Boeing.
Carrasco filed a complaint with the Kansas Human Rights Commission on
August 6, 2002, alleging Boeing retaliated against her for opposing acts and
practices forbidden by the Kansas Act A gainst D iscrimination. See Kan. Stat.
Ann. § 44-1001 to -1044. An amended complaint was filed to include a charge of
sex discrimination. Both complaints contained the following allegation from
Carrasco:
From June 2001, to June 14, 2002, I was subjected to harassment
from a male supervisor whom I had filed grievances against
concerning sexual harassment. The harassment consisted of having
my work more closely scrutinized, being subjected to an unwarranted
reprimand, and being subjected to being followed and taunted.
Although I reported the harassment to upper management, nothing
was done to effectively stop it.
1
Beginning in 2001, Boeing reduced its workforce in W ichita, Kansas by
more than one-third.
2
Although Carrasco stated she declined the painter position because she did
not want to be assigned to Hans’ w ork area, she told M ary Avila that, “[e]ven if
management and personnel find a place for me in an area not under Jim Hans, I
will not accept it.”
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After Carrasco received a right to sue letter from the United States Equal
Employment Opportunity Commission, she filed this action in federal district
court pursuant to Title VII of the Civil Rights Act of 1964, 3 alleging hostile work
environment sexual harassment and retaliation. In her complaint, Carrasco
specifically stated she was subjected to sexual harassment “[f]rom June 2001 to
June 14, 2002.” She repeated this statement in the pretrial order. Boeing moved
for summary judgment and the district court granted the motion, ruling, inter alia,
no reasonable jury could conclude Hans’ conduct was severe or pervasive enough
to establish a claim of hostile w ork environment. 4
III. Discussion
This court review s a district court’s grant of summary judgment de novo,
applying the same legal standard used by the district court. Bryant v. Farmers
Ins. Exch., 432 F.3d 1114, 1124 (10th Cir. 2005). To affirm the district court, w e
must satisfy ourselves that the pleadings and admissible evidence demonstrate
“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). W e “view the
3
Although Carrasco’s complaint contains an allegation that Boeing’s
actions violated the Kansas Act Against Discrimination, the pretrial order
indicates Carrasco dismissed her state statutory claims.
4
The district court also concluded Carrasco’s constructive discharge claim
was not properly before the court and that Carrasco had abandoned her retaliation
claim. Carrasco does not challenge either of these rulings in this appeal.
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evidence and draw reasonable inferences therefrom in the light most favorable to
the nonmoving party.” Bryant, 432 F.3d at 1124.
Pursuant to Title VII of the Civil Rights Act of 1964, it is “an unlawful
employment practice for an employer . . . to discriminate against any individual
with respect to [her] compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). If a plaintiff proves that “discrimination
based on sex has created a hostile or abusive work environment,” she has
established a violation of Title VII. M eritor Sav. Bank, FSB v. Vinson, 477 U.S.
57, 66 (1986); see also Bolden v. PRC Inc., 43 F.3d 545, 550 (10th Cir. 1994).
“To constitute actionable harassment, the conduct must be sufficiently severe or
pervasive to alter the conditions of [the plaintiff’s] employment and create an
abusive working environment.” Bolden, 43 F.3d at 550-51 (quotations omitted).
A plaintiff can show that harrassment is severe or pervasive enough to implicate
Title VII if she satisfies a two-part test. Specifically, she must show (1) the
conduct “create[d] an objectively hostile or abusive work environment–an
environment that a reasonable person would find hostile or abusive” and (2) she
“subjectively perceive[d] the environment to be abusive.” Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993). Accordingly, to survive summary judgment,
Carrasco was required to present sufficient evidence from which a reasonable jury
could find that Hans’ conduct created both an objectively and subjectively
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sexually hostile work environment. See Davis v. U.S. Postal Serv., 142 F.3d
1334, 1341 (10th Cir. 1998).
“[D]etermining whether an actionable hostile w ork environment claim
exists” requires an examination of “all the circumstances, including 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.” Nat’l R.R. Passenger Corp. v. M organ,
536 U.S. 101, 116 (2002) (quotations omitted). W hen evaluating Carrasco’s
claim, the district court refused to give consideration to incidents that occurred
before June 2001. Boeing asserts the district court properly refused to consider
those incidents because Carrasco’s complaint and the pretrial order confine
Carrasco’s hostile work environment claim to the period between June 2001 and
June 14, 2002. Although Carrasco’s appellate argument relies, in part, on
encounters that occurred prior to June 2001, she makes no argument under
M organ that the district court’s ruling limiting her evidence to the period between
June 2001 and June 14, 2002 was erroneous. Accordingly, this court, too, will
consider only evidence of incidents occurring from June 2001 to June 14, 2002.
The pretrial order contains Carrasco’s contention that Hans made four
harassing statements to her between June 2001 and June 14, 2002. During the
summer of 2001, Hans asked Carrasco if he could measure her shorts from the
inside of her thigh, asked her if she tanned naked, and whispered in her ear that
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he liked her haircut. In the fall of 2001, Hans asked Carrasco several times if he
could see her thong underw ear. Carrasco argues on appeal that the district court
erroneously refused to consider evidence of other incidents that occurred between
June 2001 and June 14, 2002. This evidence consists of the deposition testimony
of Carrasco’s coworker, Dana Norris. Carrasco, however, made only broad
references to Norris’ testimony in her memorandum opposing Boeing’s motion for
summary judgment. Nevertheless, she attempts to fault the district court for
failing to consider the specific incidents about which Norris testified. W e reject
any suggestion the district court was responsible for sifting though the record,
specifically the deposition testimony of Norris, to marshal Carrasco’s evidence
for her.
In any event, the portion of M s. Norris’ deposition testimony which
Carrasco has included in the appellate record concerns Norris’ employment at
Boeing from October 1999 to November 2001. This testimony is not specific as
to time or date and Norris stated she could not remember all the dates on which
she and Carrasco worked the same shift. The record indicates that Hans and
Carrasco worked together on the first shift from July 9, 2001 to June 20, 2002.
Immediately prior to July 9, 2001, Carrasco worked the second shift and Hans
worked the first shift. Norris testified that she was working the second shift at
the time she left Boeing in November 2001. Carrasco does not argue or present
any evidence that she, Norris, and Hans worked the same shift from June 2001 to
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November 2001. Thus, although Norris testified that “everywhere you looked,
[Hans] was standing right there beside [Carrasco]” and that Hans followed
Carrasco “everywhere,” it is impossible to determine from the record before us
whether any of Norris’ testimony relates to incidents occurring between Carrasco
and Hans within the relevant time period of June 2001 to June 14, 2002.
Having concluded the district court did not err in considering only the four
specific statements Hans made to Carrasco in the summer of 2001 and fall of
2002, we also conclude the district court did not err when it granted summary
judgment in favor of Boeing. Based on our de novo review of the parties’ briefs
and contentions, the district court’s order, and the entire record on appeal, we are
convinced no reasonable jury could find from the relevant evidence that
Carrasco’s workplace was “permeated with discriminatory intimidation, ridicule,
and insult . . . sufficiently severe or pervasive to alter the conditions of [her]
employment.” Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1261
(10th Cir. 1998). Accordingly, this court affirms the entry of summary judgment
in favor of Boeing on Carrasco’s hostile w ork environment claim for substantially
the same reasons stated by the district court in its order dated M ay 9, 2005.
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IV. Conclusion
The judgment of the United States District Court for the District of Kansas
is affirmed.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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