F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 19 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ROSALIE GUNNELL,
Plaintiff-Appellant,
v.
UTAH VALLEY STATE COLLEGE,
No. 96-4155
formerly known as UTAH VALLEY
COMMUNITY COLLEGE; ROBERT
E. CLARK; RONALD GREENLEAF;
and KARLA HOLM,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:94-CV-352G)
Kenneth B Grimes, Jr., Perkins, Schwobe & McLachlan, Salt Lake City, Utah, for
Plaintiff-Appellant.
Nancy L. Kemp, Assistant Attorney General (Jan Graham, Attorney General, with
her on the briefs), Salt Lake City, Utah, for Defendants-Appellees.
Before EBEL and HOLLOWAY, Circuit Judges, and BLACK, * District Court
Judge.
*
Honorable Bruce D. Black, District Court Judge, District of New Mexico,
sitting by designation.
EBEL, Circuit Judge.
Appellant Rosalie Gunnell (“Gunnell”) filed suit against her former
employer, Utah Valley State College (“UVSC”), claiming that she was subjected
to sexual harassment and retaliation in violation of Title VII of the Civil Rights
Act of 1964 and that she was denied a medical leave of absence in violation of the
Family and Medical Leave Act of 1993 (“FMLA”). The district court granted
summary judgment for UVSC on the sexual harassment and FMLA claims, and a
jury decided against Gunnell on the retaliation claim. Gunnell appeals the grants
of summary judgment and the instruction given the jury regarding employer
liability in the retaliation context.
We affirm the judgment in favor of UVSC on Gunnell’s FMLA claim on
the ground that Gunnell’s FMLA rights were not violated by terminating her
employment. Moreover, because the court’s instructions adequately instructed the
jury on the law of employer liability for retaliation, we affirm the jury verdict in
favor of UVSC on Gunnell’s Title VII retaliation claim. However, in light of the
Supreme Court’s recent decisions regarding employer liability for harassment
committed by an employee’s supervisor, we reverse summary judgment in favor
of UVSC on Gunnell’s Title VII sexual harassment claim and remand for further
proceedings.
-2-
BACKGROUND
Gunnell was employed as a secretary in UVSC’s Plant Operations
Department. Her direct supervisor was Director of Maintenance/Custodial
Services Robert Clark (“Clark”). Gunnell also did some work for the Chief of
Campus Police, Robert Greenleaf (“Greenleaf”).
In April 1993, Gunnell complained to Karla Holm (“Holm”), UVSC’s
Personnel Director, that over the past year Clark and Greenleaf had subjected her
to acts and communications of a sexual nature, including gestures, comments,
obscene jokes, pictures, and unwelcome physical contact such as hugs. Holm met
with Clark and advised him to cease the offensive conduct. Holm also told
Gunnell she would seek positions to which Gunnell might transfer out of the Plant
Operations Department.
While Holm was investigating her complaint, Gunnell took an
administrative leave of absence. Clark admitted to Holm that some of the conduct
Gunnell complained of had occurred, but denied the other alleged incidents.
Associate Vice President for Facilities Patrick Hayes (“Hayes”), to whom Holm
reported the situation, directed Clark to distribute UVSC’s sexual harassment
policy to his staff and discuss it with them. Hayes felt that this would give
employees a chance to bring forth any other allegations of harassment. None did.
Hayes instructed Clark, Greenleaf, and other directors that there was to be no
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retaliation against Gunnell when she returned. In mid-May, Holm told Gunnell
that she would not be transferred and that she would have to return to work by
May 24 or her employment would be terminated.
Gunnell responded that she was suffering from anxiety and stress related to
her work situation and took sick leave from May 24 to July 8. During this time,
she filed two internal written grievances pursuant to UVSC’s employee grievance
policy. In the grievances, she alleged that Clark and Greenleaf had sexually
harassed her, and she requested a transfer to a different department. Before
Gunnell returned to work, the grievance committee decided that inappropriate
actions had been taken by Clark and Greenleaf, but that Gunnell should return to
her position in Plant Operations in a restructured position with the same salary.
Gunnell did not appeal the committee’s resolution.
Immediately after Gunnell complained to Holm, the sexual harassment
stopped. Gunnell continued to work in the Plant Operations Department between
July 9 and November 9, 1993. During this time, she alleges, she was given
inferior office equipment and fewer responsibilities and she was treated badly by
co-workers. On September 17, 1993, she filed a notice of discrimination with the
Utah Anti-Discrimination Division (“UADD”). On the notice, only the box
marked “retaliation” was marked under the “Cause of discrimination based on”
section. The explanation stated:
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Personal Harm: My job duties have been unfavorably changed,
people have tried to set me up at work, I have been treated
unfavorably by management and have been treated unfavorably by
co-workers.
Respondent’s Reason: None
Discrimination Statement: I accused two of my supervisors of sexual
harassment. The Respondent conducted an internal investigation into
my charges, and the harassment was found to have occurred.
Although the harassment stopped, I was subsequently retaliated
against.
While Respondent was conducting its investigation into my sexual
harassment charges, I took two months sick leave. Upon my return,
my job duties were changed significantly from what they had been
before. My more complex duties were taken away, and I was
assigned menial tasks such as copying, maintaining files and working
the phones. My job description was completely redone and was
minimized in structure and complexity. In addition, I was initially
told there was no guarantee that my job title and salary would remain
the same. Although I have since received assurance that my title and
salary are guaranteed, I still feel that they could be changed.
In addition, false accusations have been made against me and people
have tried to set me up. After leaving work one Friday, someone got
into my desk and placed confidential payroll records on top of the
desk. As a result, it appeared that I had left confidential information
out in the open. I was also accused of costing Respondent $4,000 by
using the wrong purchase number. The purchase number was used
during my absence, however, and the loss was $2,700. The person
who used the purchase number told me that he was told to use it, but
would not state who had told him to use the number. The personnel
office held a meeting with me in which they accused me of creating a
hostile work environment by taking notes in my dayplanner. I felt
like I was being personally attacked in the meeting. In addition, I
have been left out of office communications and my co-workers have
been told not to talk to me.
-5-
I also feel that I am discriminated against because of my age because
my boss treats the younger employees more favorably.
I have reason to charge this employer with unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, and the Utah Anti-Discrimination Act of 1965, as
amended.
On November 9, Hayes gave Gunnell a letter notifying her she was on
probation for taking notes about her fellow employees while at work and for
creating a hostile work environment through excessive complaining and lack of
cooperation with her co-workers. The letter stated that any actions “which are
deemed to be counter-productive to the functions housed at the Planning Center
during this probationary period will result in your immediate termination.”
Gunnell went to Clark’s office and said, “I’ve had it. I’m through. This is it. I
have not created a hostile work environment. Good luck Bob Clark!” She
gathered her belongings and went home. From home, Gunnell called Holm and
said she had left the office because of illness. Gunnell said she intended to take
medical leave and that she would have her doctor prepare a report. On that day,
Gunnell also prepared a supplement to her UADD complaint. The supplement
stated:
I, Rosalie Gunnell, hereby supplement my Charge of
Discrimination in the above-entitled action as follows:
1. I was subjected to a continuing pattern and practice of
sexual harassment by Utah Valley Community College, now known
as Utah Valley State College (“UVSC”), and my Supervisor, Robert
Clark, continuing up to at least April 16, 1993.
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2. Following my expression of oposition [sic] to said pattern
and practice of sexual harassment, on or about April 27, 1993, I have
been subjected to a continuing pattern and practice of retaliation
from UVSC management and employees, continuing up to at least
October 25, 1993.
3. On or about October 25, 1993, I was denied transfer to a
position for which I was qualified in retaliation for my having
expressed opposition to said acts of sexual harassment and
retaliation.
Gunnell called in sick on November 10, 11, and 12, 1993. On November
13, she received a letter from Hayes terminating her employment, effective
November 12, because of her insubordination and disruptive behavior, both on
November 9 and on other occasions.
Gunnell filed suit for sexual discrimination and retaliation under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a) (1994),
and for denial of medical leave under the Family and Medical Leave Act of 1993
(FMLA), 29 U.S.C.A. § 2601 et seq. (West Supp. 1998). The district court held
that Gunnell had not appealed the rulings of the UVSC Grievance Committee and
therefore had adopted its determinations, that she did not include the sexual
harassment claim in her UADD complaint, and that the sexual harassment had
stopped promptly after she complained to Holm. The district court also held that
Gunnell had not fulfilled the requirements for obtaining FMLA leave and that she
had not shown how her request for FMLA leave and her termination were
connected. Consequently, it granted summary judgment for defendants on those
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two claims and denied Gunnell’s subsequent motion to alter or amend the
judgment under Federal Rule of Civil Procedure 59.
The Title VII retaliation claim went to trial. Gunnell objected to the
district court’s proposed jury instruction regarding the standard of employer
liability for retaliation. Gunnell argued that the instruction should provide that
UVSC could be found liable for retaliation if management-level employees knew
or should have known about the retaliatory acts of Gunnell’s co-workers and
failed to stop them – essentially, a negligence standard. The district court
rejected Gunnell’s argument and limited the instruction to read that UVSC could
be held liable for the acts only of its management and supervisory-level
employees, such as Hayes or Clark. 1 The jury found in favor of UVSC.
1
The challenged jury instructions read as follows:
The second element of the [claim] concerns alleged adverse
action by the employer, Utah Valley State College.
An employer, such as Utah Valley State College, may be liable
for discriminatory retaliation by reason of the actions of persons in
supervisory positions who had significant control over the Plaintiff’s
hiring, firing, or conditions of employment, or by management-level
employees who have ultimate authority to hire, fire and to control
conditions of employment.
***
The fourth element is intentional discrimination.
An employer, such as Utah Valley State College, can be held
liable for intentional retaliatory acts of an individual, but such an
individual must be a management-level employee or an employee in a
supervisory position over plaintiff and exercise significant control
(continued...)
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Gunnell appeals the grants of summary judgment and the jury instructions
given by the district court on retaliation.
DISCUSSION
I. 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 under Federal Rule of
Civil Procedure 56(c) and examining the factual record in the light most favorable
to the party opposing summary judgment. See Belhomme v. Widnall, 127 F.3d
1214, 1216 (10th Cir. 1997), cert. denied, 118 S. Ct. 1569 (1998).
We review a district court’s decision on whether to give a specific jury
instruction for abuse of discretion, but we review the instructions themselves de
novo to determine whether as a whole they state the governing law and provide
the jury with a proper understanding of the issues. See Thomas v. Denny’s Inc.,
111 F.3d 1506, 1509 (10th Cir.), cert. denied, 118 S. Ct. 626 (1997).
1
(...continued)
over Plaintiff’s hiring, firing, or conditions of employment.
Intentional discriminatory acts of retaliation may be shown either
directly by evidence that the employer, Utah Valley State College,
acted with a discriminatory motive or indirectly by showing that the
stated reasons for the adverse employment actions were a mere
“pretext” for retaliation.
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II. Summary Judgment
A. Title VII Sexual Harassment Claim
The district court advanced three reasons for granting summary judgment to
UVSC on Gunnell’s Title VII sexual harassment claim: (1) Gunnell failed to
appeal the decision of the university’s grievance committee within the university
system; (2) the sexual harassment stopped after Gunnell complained about it to
the personnel director; and (3) Gunnell’s UADD complaint addressed only the
retaliation issue. We reverse and remand for further proceedings.
First, the district court held that Gunnell failed to appeal the decision of the
university grievance committee and thus apparently acquiesced in its resolution of
her grievances. However, the fact that Gunnell failed to appeal internally the
grievance committee’s decision is not dispositive, given that a Title VII plaintiff
is not required to exhaust her employer’s internal grievance procedures before
filing suit. See Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1453-54 (10th Cir.
1997) (no requirement that union employee exhaust grievance procedure which
was provided in collective bargaining agreement), cert. granted and opinion
vacated on other grounds, 118 S. Ct. 2364 (1998); Johnson v. Greater Southeast
Commun. Hosp. Corp., 951 F.2d 1268, 1276 (D.C. Cir. 1991) (“A private party
alleging federal civil rights violations need not pursue internal administrative
remedies before pressing a claim in federal court.”). Even if we surmise that
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Gunnell, by returning to her employment under the conditions outlined by the
grievance committee, acquiesced in future conduct, there is nothing to suggest
that she acquiesced in any remedy for past conduct. Consequently, the district
court should not have relied on this factor in granting summary judgment for
UVSC.
Further, Gunnell sufficiently presented her complaint of sexual harassment
to the UADD and the EEOC. 2 While we do not construe Gunnell’s September
UADD/EEOC charge as alleging more than a retaliation claim, her November
supplement to her charge presented a sufficient claim of sexual harassment. As to
Gunnell’s September claim, we note that Gunnell marked only the “retaliation”
box on her administrative complaint. Although her failure to mark the box for
sex discrimination is not dispositive, see Kristufek v. Hussmann Foodservice Co.,
985 F.2d 364, 368 (7th Cir. 1993); Hornsby v. Conoco, Inc., 777 F.2d 243, 247
(5th Cir. 1985), it certainly creates a presumption that she was not asserting
claims represented by boxes not checked. Here, that presumption was not
rebutted by the text of her claim because the prose she used to describe her claim
did not clearly set forth a sexual discrimination claim. A reasonable reader would
understand that her mention of sex discrimination was merely a prelude, an
2
The filing of a discrimination charge with either a state or federal
administrative agency is a prerequisite to filing a Title VII discrimination suit in
federal court. See Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 799 (10th
Cir.), cert. denied, 118 S. Ct. 342 (1997).
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explanation leading up to the gist of her complaint of retaliation. See Williams v.
Little Rock Mun. Water Works, 21 F.3d 218, 223 (8th Cir. 1994) (employee’s
EEOC charge, which mentioned filing previous racial discrimination charge,
reasonably read as alleging only retaliation claim, particularly in light of
employee’s failure to check box for racial discrimination). However, Gunnell’s
November 9 supplement to her charge does complain about Clark’s harassment.
The allegation in the supplement, though sparse, identifies the type of
discrimination complained of, the alleged harasser, and an approximate time
period, and thus is minimally sufficient to satisfy the requirements for the
contents of a charge of discrimination and the purposes of the notice requirement.
See 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.12(b); see also Ingels v. Thiokol
Corp., 42 F.3d 616, 625 (10th Cir. 1994) (purpose of requiring administrative
exhaustion is to give notice of alleged violation to charged party and to give
EEOC an opportunity to conciliate the claim). Moreover, although UVSC argues
that there is nothing in the record to show that Gunnell filed the supplement with
the UADD, Gunnell’s affidavit asserted that she filed the supplementary
complaint. Consequently, there was evidence before the district court that a
timely complaint alleging sexual harassment had been filed with the UADD,
making the matter inappropriate for summary judgment on this ground. 3
3
Title VII requires a plaintiff to file a discrimination complaint with the
(continued...)
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The only remaining ground for granting summary judgment rests on the
district court’s conclusion that the harassment stopped as soon as Gunnell
complained to Holm. In Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998),
and Burlington Indus. v. Ellerth, 118 S. Ct. 2257 (1998), the Supreme Court
articulated the relevant standard:
An employer is subject to vicarious liability to a victimized employee
for an actionable hostile environment created by a supervisor with
immediate (or successively higher) authority over the employee.
When no tangible employment action is taken, a defending employer
may raise an affirmative defense to liability or damages, subject to
proof by a preponderance of the evidence, see Fed. Rule Civ. Proc.
8(c). The defense comprises two necessary elements: (a) that the
employer exercised reasonable care to prevent and correct promptly
any sexually harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.
Faragher, 118 S. Ct. at 2292-93; Burlington Indus., 118 S. Ct. at 2270.
The record on appeal shows that Clark arguably was Gunnell’s supervisor.
Thus, the principles of employer liability set forth in Faragher and Burlington
3
(...continued)
EEOC within 180 days or with a state agency within 300 days of the complained-
of conduct. See 42 U.S.C.A. § 2000e-5(e)(1). In Utah, plaintiffs have recourse to
the Utah Anti-Discrimination Division, and so the 300-day limit applies. See
Metcalf v. Metropolitan Life, Inc., 961 F. Supp. 1536, 1542 (D. Utah 1997). In
light of our holding that Gunnell’s September charge did not allege sexual
harassment, we do not believe that her November 9 allegation of sexual
harassment relates back to her September 17 charge. See 29 C.F.R. § 1601.12(b)
(allegations and amendments “related to or growing out of the subject matter of
the original charge” will relate back to the date of the filing of the original
charge). However, Gunnell’s November 9 charge was timely because it alleged
that the sexual harassment occurred within 300 days of the complaint.
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Industries apply to this case. Under Faragher and Burlington Industries, an
employer whose supervisory personnel has harassed subordinates will be liable
for the harassment that occurred even though the employer ultimately stopped
further harassment. If the employee has not been subjected to any tangible
employment action, however, the employer may assert an affirmative defense to
any liability by showing both that it had reasonable mechanisms in place to
prevent and to cure any discriminatory practices and that the plaintiff employee
unreasonably failed to take advantage of such opportunities. Before the district
court, UVSC argued generally that it acted promptly to correct any inappropriate
behavior. However, given that Faragher and Burlington Industries have now set
forth a specific defense to employer liability for sexual harassment by a
supervisor, we reverse summary judgment on this claim and remand to allow the
district court to evaluate Gunnell’s claim in light of these recent Supreme Court
cases. For example, under Faragher and Burlington Industries the district court
should consider whether there was a hostile work environment based on sexual
harassment of Gunnell that existed within the limitations period; whether Clark or
others who caused such hostile work environment were Gunnell’s supervisors;
whether UVSC had a reasonable policy in place to prevent and correct promptly
such sexually harassing behavior; and whether Gunnell unreasonably failed to
take advantage of such policies or to avoid harm otherwise.
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B. FMLA Claim
The district court granted summary judgment for UVSC on Gunnell’s
FMLA claim for three reasons: (1) Gunnell had not given UVSC proper notice of
her need for medical leave; (2) Gunnell failed to supply proper certification of her
need for medical leave; and (3) Gunnell did not show that her request for FMLA
leave was connected to her termination. We affirm on essentially the third
ground, and accordingly do not address the first two grounds.
FMLA provides that employers must allow employees up to twelve weeks
of leave in a year if the leave is requested for one of the purposes specified in the
statute, including an employee’s “serious health condition that makes the
employee unable to perform the functions of the position of such employee.” 29
U.S.C.A. § 2612(a)(1)(D). At the end of the leave, the employee must be
reinstated to his or her position or to a position equivalent in pay, benefits, and
other terms and conditions of employment. See 29 U.S.C.A. § 2614(a)(1). Under
FMLA, it is unlawful “for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided under this subchapter,”
29 U.S.C.A. § 2615(a)(1), and “for any employer to discharge or in any other
manner discriminate against any individual for opposing any practice made
unlawful by this subchapter,” 29 U.S.C.A. § 2615(a)(2). Gunnell explicitly
disavows any § 2615(a)(2) claim that she was terminated because she requested
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FMLA leave. Instead, she asserts a cause of action under 29 U.S.C.A.
§ 2615(a)(1), alleging that her employer interfered with her exercise of her FMLA
rights by ending her employment, which effectively denied her FMLA leave
request.
Gunnell was not deprived of her right to leave in violation of FMLA.
Under FMLA, an employee who requests leave or is on leave has no greater rights
than an employee who remains at work. See 29 C.F.R. § 825.216(a). For this
reason, an employee who requests FMLA leave would have no greater protection
against his or her employment being terminated for reasons not related to his or
her FMLA request than he or she did before submitting the request. Cf. 29 C.F.R.
§ 825.216(a) (noting that employee may be laid off or refused return to shift that
has been eliminated, as long as the action would have been taken in the absence
of FMLA leave); Vargas v. Globetrotters Eng. Corp., 4 F. Supp. 2d 780, 783
(N.D. Ill. 1998) (secretary had no right to reinstatement to field secretary position
because it had been eliminated before she returned from leave); Carrillo v.
National Council of the Churches of Jesus Christ, 976 F. Supp. 254, 256
(S.D.N.Y. 1997) (termination while employee was on medical leave did not
violate FMLA; decision to terminate employment clear before leave taken).
Gunnell asserts that summary judgment is precluded because there remain
disputed issues of fact regarding whether her conduct warranted termination, but
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she specifically refuses to argue that she was fired because of her FMLA request.
In light of this concession, any reason for terminating Gunnell’s employment
would not involve FMLA, and consequently that statute can offer Gunnell no
relief. 4
III. Jury Instructions
On appeal, Gunnell argues that the district court improperly instructed the
jury on employer liability for the retaliatory acts of employees because it limited
the instruction to include only the retaliatory acts of management and supervisory-
level employees and not the retaliatory acts of co-workers. In addition, she
contends that the district court erred by refusing to give her proposed instruction
on employer liability. 5
4
We note that Gunnell makes no argument that she was denied her FMLA
rights between the date of her request for leave (November 9, 1993) and the date
her employment was terminated (November 12, 1993). She called in sick on
November 10, 11, and 12, 1993. Such use of sick leave is in accordance with
FMLA, which provides that an employer may require an employee to use
accumulated sick leave for any part of a leave granted on account of an
employee’s serious health condition. See 29 U.S.C.A. § 2612(d)(2)(B).
5
We reject UVSC’s argument that Gunnell did not preserve her objections
for appeal. At the final pretrial conference, Gunnell argued that the jury should
be instructed on UVSC’s potential liability for the retaliatory acts of Gunnell’s
co-workers, and that a negligence analysis would be appropriate. Her concern
was reiterated at the jury instruction conference. Although UVSC contends that
Gunnell failed to raise the issue when the court asked if there were any objections
to the jury instructions, we believe a fair reading of the colloquy between court
and counsel indicates that both believed her objections were on the record. Thus,
we shall review Gunnell’s argument on its merits. See Abercrombie v.
(continued...)
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A. Instruction Given by Court
Title VII prohibits retaliation against an employee because he or she “has
opposed any practice made an unlawful employment practice by this subchapter,
or because he [or she] has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter.” 42
U.S.C. § 2000e-3(a). To establish a prima facie Title VII retaliation claim, the
plaintiff must show: (1) he or she was engaged in opposition to Title VII
discrimination; (2) he or she was subjected to adverse employment action
subsequent to or contemporaneous with the protected activity; and (3) there is a
causal connection between the protected activity and the adverse employment
action. See Murray v. City of Sapulpa, 45 F.3d 1417, 1420 (10th Cir. 1995). It is
well settled that the burden of persuading the factfinder that the defendant
intentionally discriminated remains at all times with the plaintiff. A showing of
retaliatory motive has long been relevant to the causation prong of a retaliation
claim, see, e.g., Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339, 343
(10th Cir. 1982), but in Purrington v. University of Utah, 996 F.2d 1025 (10th
Cir. 1993), we made it clear that the plaintiff must prove that the defendant’s
action was intentionally retaliatory. See id. at 1033; see also Padilla v. Metro-
North Commuter R.R., 92 F.3d 117, 122 (2d Cir. 1996) (“A plaintiff asserting a
(...continued)
5
Osteopathic Hosp. Founders Ass’n, 950 F.2d 676, 679 (10th Cir. 1991).
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retaliation claim ‘has the ultimate burden of persuasion to demonstrate that the
challenged employment decision was the result of intentional retaliation.’”)
(citation omitted), cert. denied, 117 S. Ct. 2453 (1997).
In light of these principles, the district court instructed the jury that:
In order to establish a claim of retaliation, plaintiff must
prove, by a preponderance of the evidence, each of the following
elements:
(1) a protected opposition to discrimination;
(2) adverse action by an employer contemporaneous with or
subsequent to the employee’s protected activity;
(3) a causal connection between such activity and the
employer’s action;
(4) the employer’s action constitutes intentional
discrimination.
In this case, the first element – protected action by plaintiff –
requires determination by the jury whether the filing of a grievance
by plaintiff for alleged sexual harassment constituted protected
activity in opposition to discrimination; the second element – adverse
actions by defendant – requires determination by the jury whether
actions which adversely affected Plaintiff were taken by defendant
Utah Valley State College contemporaneously or shortly after the
grievance was filed; the third element – causation – requires
determination by the jury whether a motivation of the actions of Utah
Valley State College was retaliation for the filing of the grievance by
plaintiff; the fourth element – intentional conduct – requires
determination by the jury whether the actions of Utah Valley State
College constituted intentional retaliation.
The court then gave the jury specific instructions as to each element.
Gunnell challenges the court’s instructions on the second element of
adverse action by an employer and the fourth element of intentional conduct. The
second element instruction stated:
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The second element of the [claim] concerns alleged adverse
action by the employer, Utah Valley State College.
An employer, such as Utah Valley State College, may be liable
for discriminatory retaliation by reason of the actions of persons in
supervisory positions who had significant control over the Plaintiff’s
hiring, firing, or conditions of employment, or by management-level
employees who have ultimate authority to hire, fire and to control
conditions of employment.
The fourth element instruction stated:
The fourth element is intentional discrimination.
An employer, such as Utah Valley State College, can be held
liable for intentional retaliatory acts of an individual, but such an
individual must be a management-level employee or an employee in a
supervisory position over plaintiff and exercise significant control
over Plaintiff’s hiring, firing, or conditions of employment.
Intentional discriminatory acts of retaliation may be shown either
directly by evidence that the employer, Utah Valley State College,
acted with a discriminatory motive or indirectly by showing that the
stated reasons for the adverse employment actions were a mere
“pretext” for retaliation.
Gunnell argues that the district court’s instructions incorrectly foreclosed a
finding of liability where the acts of retaliation were committed by co-workers (as
opposed to management or supervisor-level employees), but where management-
level employees knew or should have known that her co-workers were
intentionally retaliating against her and failed to take action. She contends that
because negligent employers may be held liable for sexual harassment by co-
workers, negligent employers should be liable for retaliation by co-workers as
well.
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Deciding whether hostility or harassment by co-workers may support a
retaliation claim requires us to analyze two questions: first, whether the actions
of co-workers can constitute an “adverse employment action,” as required by the
second prong of the prima facie case; and second, whether retaliatory acts of co-
workers can be considered the intentional conduct of the employer, as required by
the second and third prongs of the prima facie case and by Purrington.
First, we address whether the actions of co-workers can constitute an
“adverse employment action.” Several of our sister circuits have narrowly
defined the term “adverse employment action,” holding that campaigns of
hostility and harassment directed against plaintiffs, whether by co-workers or by
supervisors, are insufficient to establish adverse employment action. See
Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997)
(hostility and personal animus directed at plaintiffs by supervisors insufficient to
show retaliation “[a]bsent evidence of some more tangible change in duties or
working conditions that constituted a material employment disadvantage.”);
Munday v. Waste Management of North America, Inc., 126 F.3d 239, 243 (4th
Cir. 1997) (“In no case in this circuit have we found an adverse employment
action to encompass a situation where the employer has instructed employees to
ignore and spy on an employee who engaged in protected activity, without
evidence that the terms, conditions, or benefits of her employment were adversely
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affected.”), cert. denied, 118 S. Ct. 1053 (1998); Mattern v. Eastman Kodak Co.,
104 F.3d 702, 707 (5th Cir.) (“adverse action” must be an “ultimate employment
decision[],” such as hiring, compensating, promoting, granting leave, or firing;
“Hostility from fellow employees, having tools stolen, and resulting anxiety,
without more, do not constitute ultimate employment decisions, and therefore are
not the required adverse employment actions.”), cert. denied, 118 S. Ct. 336
(1997) . In contrast, at least two other circuits have indicated, in dicta, that co-
worker hostility or retaliatory harassment which is known about and acquiesced in
by supervisors or management may be considered an “adverse employment
action.” See Knox v. State of Ind., 93 F.3d 1327, 1334 (7th Cir. 1996) (“No one
would question the retaliatory effect of many actions that put the complainant in a
more unfriendly working environment . . . . Nothing indicates why a different
form of retaliation – namely, retaliating against a complainant by permitting her
fellow employees to punish her for invoking her rights under Title VII – does not
fall within the statute.”); Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir.
1994) (per curiam) (citing 3 Arthur Larson & Lex K. Larson, Employment
Discrimination § 87.20, at 17-101 to 17-107 (1994), which includes among
adverse employment actions, “toleration of harassment by other employees” as
example of retaliatory activity).
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Although we have never addressed the precise question whether co-worker
hostility may qualify as an “adverse employment action,” in our retaliation cases
we have liberally interpreted the phrase “adverse employment action.” In Jeffries
v. Kansas, – F.3d –, 1998 WL 318533, at *11 (10th Cir. June 17, 1998), we
recently stated, “In recognition of the remedial nature of Title VII, the law in this
circuit liberally defines adverse employment action.” Rather than defining a set
rule regarding what constitutes an “adverse employment action,” we noted that
“this court takes a case-by-case approach to determining whether a given
employment action is ‘adverse.’” Id. (citing Corneveaux v. CUNA Mut. Ins.
Group, 76 F.3d 1498, 1507 (10th Cir. 1996), and Berry v. Stevinson Chevrolet, 74
F.3d 980, 986-87 (10th Cir. 1996)). In Berry, for example, where the district
court found that management caused plaintiff’s co-worker to initiate a criminal
complaint against plaintiff, we found that malicious prosecution may constitute
an “adverse employment action.” See 74 F.3d at 986-87. Under our circuit
precedent we believe that co-worker hostility or retaliatory harassment, if
sufficiently severe, may constitute “adverse employment action” for purposes of a
retaliation claim.
We must next decide under what circumstances such co-worker hostility
can be considered intentional retaliation on the part of the employer. We perceive
at least three factual scenarios involving co-worker retaliatory harassment: (1) co-
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workers, without the knowledge of supervisory or management personnel,
independently take it upon themselves to harass the plaintiff in retaliation for
engaging in protected activity; (2) supervisory or management personnel know
about and acquiesce in or condone the retaliatory harassment by the plaintiff’s co-
workers; and (3) supervisory or management personnel orchestrate the campaign
of co-worker harassment. Gunnell, by advocating a “known or should have
known” standard, would hold employers liable in each of the three scenarios.
However, because harassment must be intentional on the part of the employer, we
hold that an employer can only be liable for co-workers’ retaliatory harassment
where its supervisory or management personnel either (1) orchestrate the
harassment or (2) know about the harassment and acquiesce in it in such a manner
as to condone and encourage the co-workers’ actions. See Knox, 93 F.3d at 1333-
35 (in dicta, approving an instruction that would hold an employer liable for
“retaliation . . . committed by co-workers with the knowledge and acquiescence of
the employer.”) An employer may not be held liable for the retaliatory acts of co-
workers if none of its supervisory or management-level personnel orchestrated,
condoned, or encouraged the co-workers’ actions, and no such management
participation could occur if the supervisory or management-level personnel did
not actually know of the co-workers’ retaliation.
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Our conclusion that an employer may be liable for the retaliatory acts of co-
workers, however, does not require us to reverse the jury verdict in this case in
favor of UVSC. The instruction given restricted UVSC’s liability to the acts of
management-level and supervisory personnel. As we have explained, for UVSC
to be liable for a campaign of co-worker harassment, management-level or
supervisory personnel must either have orchestrated or have known about and
condoned the conduct of Gunnell’s co-workers. Consequently, the instruction
correctly alerted the jury that it would have to find some management or
supervisory involvement in the retaliatory conduct to hold UVSC liable for co-
worker retaliation. The jury chose not to so find.
In addition, the record on appeal tends to show that most of Gunnell’s
allegations pertained to retaliatory acts which Gunnell complained were allegedly
committed directly by management-level or supervisory personnel. 6 We doubt
that the few actions identifiably taken by co-workers, which generally seem to
involve incidents of rudeness, are sufficient to support a claim for retaliation,
given that Title VII neither is a “general civility code” nor does it make
6
Gunnell has not provided us with a transcript of the trial proceedings, so
we cannot determine what the evidence at trial showed. Instead, we rely on the
allegations included in the pretrial plan, which is part of the appellate record.
The jury instructions, of course, properly instructed that UVSC could be held
liable for acts of retaliation committed by management-level or supervisory
employees. The jury returned a verdict for UVSC, indicating that it found no
such acts of retaliation by UVSC’s management or supervisors.
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actionable the “‘ordinary tribulations of the workplace.’” Faragher, 118 S. Ct. at
2283-84 (quoting B. Lindemann & D. Kadue, Sexual Harassment in Employment
Law 175 (1992)); see also Jeffries, 1998 WL 318533 at *12 (suggesting that
“tense personal relationships do not rise to the level of actionable retaliation”).
As a result, any error in the instructions given by the district court regarding co-
worker liability would be harmless.
B. Gunnell’s Requested Instruction
Gunnell also appeals the district court’s refusal to give her proposed
instruction on employer liability for retaliation. Her proposed instruction stated:
An employer, such as Utah Valley State College, may be liable for
any act of unlawful retaliatin [sic] which is (1) committed by an
employee acting within the scope of his or her employment; (2)
committed by an employee in which the employer was negligent or
reckless; or (3) in which the employee purported to act or speak on
behalf of the employer and there was reliance upon apparent
authority, or the employee was aided in accomplishing the retaliation
by the existence of the agency relation.
The law of this circuit requires Gunnell to show that she was intentionally
retaliated against by her employer. See Purrington, 996 F.2d at 1033. Gunnell’s
proposed instruction does not instruct the jury that the employer’s retaliation must
have been intentional, and indeed would impose liability on a negligent employer,
a standard we reject above. Because Gunnell’s proposed instruction was an
erroneous statement of the law, the district court did not err in refusing to give it.
See Federal Deposit Ins. Corp. v. Appling, 992 F.2d 1109, 1115 (10th Cir. 1993).
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CONCLUSION
We AFFIRM summary judgment in favor of UVSC on Gunnell’s FMLA
claim and AFFIRM the jury verdict in favor of UVSC on Gunnell’s retaliation
claim. In light of recent Supreme Court precedent, we REVERSE summary
judgment in favor of UVSC on Gunnell’s hostile work environment claim and
REMAND for further proceedings in the district court.
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