Kirk v. City of Tulsa, OK

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 16 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

IVY KIRK, an individual,

Plaintiff-Appellant,

v. No. 02-5138
(D.C. No. 01-CV-433-EA)
THE CITY OF TULSA, (N.D. Okla.)
OKLAHOMA, a municipal
corporation,

Defendant-Appellee.

ORDER AND JUDGMENT

Before TACHA, Chief Judge, HARTZ, and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3.
 Plaintiff Ivy Kirk appeals from summary judgment entered for defendant

City of Tulsa on her claims that (1) her supervisor maintained a hostile work

environment and discriminated against her on the basis of sex, and (2) the City

altered and ultimately terminated her employment status in retaliation for her

complaints about her supervisor’s conduct, in violation of Title VII of the Civil

Rights Act of 1964. As to the hostile environment and discrimination claims, the

district court held that Plaintiff could not show actionable misconduct based on

the actions she cited and that the City had in any event established as a matter of

law that it could not be held vicariously liable for the supervisor’s conduct under

Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries,

Inc. v. Ellerth, 524 U.S. 742 (1998). As to the retaliation claim, the district court

held that Plaintiff could not link her complaints about her supervisor either to the

reclassification and competitive re-advertisement of her position (following a

substantial alteration of duties in accordance with an outside consultant’s study of

city jobs) or to her separation from the City on the basis of an undisputed mental

disability. On de novo review, see Trujillo v. Univ. of Colo. Health Sciences Ctr.,

157 F.3d 1211, 1213 (10th Cir. 1998), we agree with the district court that

Plaintiff’s evidence of sexual hostility, discrimination, and retaliation was legally

deficient and, accordingly, affirm.

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 The district court’s order contains a thorough recitation of the relevant

facts, admitted and contested. We will not repeat that here. A summary of the

main points will suffice to frame the legal discussion that follows.

Plaintiff worked in the City’s Urban Development Department (UDD) from

July 1997 until May 2001, supervising a staff responsible for managing and

marketing City properties. In September 1999 Tony Lombardi was hired to

replace Plaintiff’s immediate supervisor. In her deposition Plaintiff described

Lombardi’s abrasive management style, which he allegedly admitted was to tear

people down, take away their power and make them feel inadequate, and then

gradually build them back up into the type of employees he wanted. She said that

at first he made her feel that he appreciated her work but he inappropriately

commented about other people. For example, he referred to a Jack Page from the

City public works department as an idiot and likened a meeting with him to

“being in a circle jerk.” Although she now cites this offensive remark in support

of her sexual hostility claim, she specifically noted in her deposition that it was

not directed at her but at the man Lombardi was insulting.

In time Plaintiff’s relationship with Lombardi soured. Hostile

confrontations between Lombardi and members of Plaintiff’s staff (male and

female) erupted and Lombardi interfered with her supervisory authority. She also

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began to hear of rude comments that he had made to others in reference to her. In

the midst of all this, Plaintiff suffered from an escalation of her bipolar disorder.

Meanwhile, the City hired a consulting firm to conduct a broad review (the

Hay Study) of its professional occupational structure. As part of the Hay Study,

Plaintiff prepared a revised description of her job, in which she integrated duties

from a number of different positions, some performed by her former supervisor.

In the end, as Plaintiff remarked in her deposition, she effectively wrote herself

out of the job, in that the committee implementing the Hay Study findings

reclassified it several levels higher and decided, in May or June 2000, that it

should be advertised for competitive placement.

By this time Plaintiff’s mental condition had deteriorated to such an extent

that she applied for disability benefits. In August 2000, while her application was

under consideration by the City’s disability review committee, Plaintiff met with

the City’s director of human resources to discuss the reclassification of her

position. During the meeting she also complained of sexual harassment by

Lombardi, prompting an investigation that failed to substantiate her allegations.

Her employment with the City formally ended when the disability review

committee granted her a disability separation based on the diagnosis of her doctor

and the concurrence of the City physician. Following an unsuccessful EEOC

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complaint, she commenced this action, and the City eventually moved for

summary judgment.

The district court began its analysis by considering the City’s associated

motion to strike certain items of evidence offered by Plaintiff. Two particular

exhibits are material here. The first is a deposition excerpt in which a UDD

contractor stated that he had heard secondhand that Lombardi had made

disparaging comments about Plaintiff’s handling of a project. The district court

properly rejected this hearsay evidence. See Starr v. Pearle Vision, Inc., 54 F.3d

1548, 1555 (10th Cir. 1995). The second exhibit is simply a list of the comments

and actions by Lombardi which Plaintiff relies on for her hostile-environment and

discrimination claims. To explain its proffer as an item of evidence, Plaintiff

asserted that the list was attached to an e-mail she had sent to the head of UDD,

Brenda Miller, giving notice of her complaints about Lombardi three months

before she discussed those complaints with the City’s human resource director

(and prior to the reclassification of her job). As none of the e-mail exchanges

between Plaintiff and Miller at the pertinent time contained any indication that

this loose, unsigned sheet of paper had been sent as an attachment, the district

court struck the exhibit. Given the lack of foundation, this ruling was a sound

exercise of the district court’s discretionary authority over the admission of

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evidence on summary judgment. See Roe ex rel. Roe v. Keady, 329 F.3d 1188,

1194 (10th Cir. 2003).

Sexual Hostility/Discrimination

Plaintiff claims that her immediate supervisor, Lombardi, created a sexually

hostile work environment and discriminated against her on account of her gender.

As explained below, we agree with the district court that the incidents cited by

Plaintiff do not show the focused animus and severe offensiveness required to

establish an actionable hostile work environment. See generally O’Shea v. Yellow

Tech. Servs., Inc., 185 F.3d 1093, 1097 (10th Cir. 1999) (holding that, to defeat

summary judgment, hostile-environment plaintiff “must show that a rational jury

could find that the workplace is permeated with discriminatory intimidation,

ridicule, and insult[] that is sufficiently severe or pervasive to alter the conditions

of [her] employment and create an abusive working environment.” (internal

quotation marks omitted and emphasis added)). Nor do these incidents involve

the kind of adverse employment action necessary to give rise to a cause of action

for gender-based discrimination distinct from a hostile-environment claim. See

generally Sanchez v. Denver Pub. Schs., 164 F.3d 527, 531-32 (10th Cir. 1998)

(affirming summary judgment for employer in sex-discrimination case because

instances of disparate treatment did not rise to level of adverse employment

action).

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 We list below the alleged instances of misconduct by Lombardi discussed

in Plaintiff’s briefs (most of which he denies). Several of these incidents were

discounted by the district court because they were “supported by no evidence

other than [Plaintiff’s] own allegations in deposition or affidavit form.” R., doc.

54 at 11. The testimony and averments of a party, however, are legally competent

to oppose summary judgment, notwithstanding their inherently self-serving

nature, provided they are “based on personal knowledge and set forth facts that

would be admissible in evidence.” Hall v. Bellmon , 935 F.2d 1106, 1111 (10 th

Cir. 1991); see, e.g. , Longstreth v. Maynard , 961 F.2d 895, 902 (10 th Cir. 1992).

We therefore consider all the following alleged conduct by Lombardi in reviewing

the propriety of summary judgment here:

1. Making the remarks about Jack Page noted above;

2. Stating that a female employee with a bad attitude “just needs to
get her hysterectomy and retire;”

3. Claiming that he “was brought in to straighten Brenda [Miller] up;”

4. Blaming a female employee (Pam Bright) during a staff meeting
for a delay attributable to a male colleague (Ray Meldrum), and
later apologizing for “using Pam to straighten Ray Meldrum up;”

5. Stating to several staff members that “the problem with this job is
that god damn Ivy;”

6. Mimicking one of Plaintiff’s manic attacks and referring to her as
“crazy;”

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 7. Advising Plaintiff’s staff to report directly to him rather than through
her; and

8. Blurting out in a meeting with building contractors which Plaintiff
did not attend that problems they were encountering with a project
she worked on “were because of that god damn cunt Ivy Kirk.”
(Plaintiff also claims that Lombardi called her a “bitch,” but the
deponent she relies on for this statement actually disavowed any
recollection of the alleged incident.)

Two of these incidents were sexually offensive remarks about women, of

which one was directed at Plaintiff, although made in her absence. Nevertheless,

even though Lombardi’s alleged behavior is reprehensible, the correction of

indiscriminate boorishness and vulgarity in the workplace is not the function of a

Title VII action for a sexually hostile environment. See Penry v. Fed. Home Loan

Bank of Topeka, 155 F.3d 1257, 1263 (10th Cir. 1998). Considering all of the

comments and conduct noted above, Plaintiff has failed to show harassment

sufficiently severe or pervasive to support a hostile-environment claim under Title

VII. See Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1366 (10th Cir. 1997)

(holding five instances of sexually inappropriate conduct characterized as

“unpleasant,” which occurred over a span of sixteen months, insufficient to

establish actionable “hostile or abusive” work environment under controlling

standards).

Plaintiff’s claim of gender discrimination also fails. To support this claim,

Plaintiff had to show “that the challenged conduct constituted an adverse

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employment action.” Sanchez, 164 F.3d at 532. “To be an adverse action, the

employer’s conduct must be materially adverse to the employee’s job status.”

Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1213 (10th Cir. 2003) (internal

quotation marks omitted). This standard is satisfied by “a significant change in

employment status, such as . . . firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change

in benefits.” Id. (internal quotation marks omitted). It does not include, however,

simply “unsubstantiated oral reprimands and unnecessary derogatory comments”.

Id. at 1214 (internal quotation marks omitted). Nor does it include, as here, “a

loss of authority that was [not] severe or prolonged enough to constitute a

‘materially adverse’ reduction in job responsibilities.” Id. We recognize that the

reclassification of Plaintiff’s position and the decision to grant her a disability

separation entailed significant changes in her employment status, but she

presented no evidence connecting Lombardi to either action.

Retaliation Claim

To support her retaliation claim, Plaintiff had to show that (1) she engaged

in protected opposition to Title VII discrimination; (2) she suffered a subsequent

or contemporaneous adverse employment action; and (3) a causal connection

existed between the protected activity and adverse action. Penry, 155 F.3d at

1263-64. Plaintiff refers to her complaints about Lombardi as the protected

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activity, cites the reclassification of her position and her later disability separation

from the City as adverse employment actions, and insists that there was a causal

nexus. The district court rejected her claim, holding that she had not

demonstrated a triable issue of causation. We agree.

In assessing causation it is essential to identify the protected activity to

which the adverse employment action is attributed. For this, Plaintiff relies on

her aborted effort to complain about Lombardi to Brenda Miller in May 2000,

which predated the reclassification of her position and hence could be causally

related to it. But the record indicates that Plaintiff asked Miller only in general

terms to talk to her about Lombardi, with whom Plaintiff and various members of

her staff (male and female) had had numerous professional conflicts, and that she

abandoned the effort when Miller’s schedule necessitated some delay. There is

no cited evidence showing that Miller was informed that Plaintiff was acting in

opposition to Title VII discrimination. Consequently, the fact that the

reclassification of Plaintiff’s position occurred after this episode cannot establish

causation. Peterson v. Utah Dep’t of Corr. , 301 F.3d 1182, 1188 (10 th Cir. 2002)

(“employer cannot engage in unlawful retaliation if it does not know that the

employee has opposed or is opposing a violation of Title VII”).

Finally, we consider the possible causal effect of the complaints about

Lombardi which came to light during Plaintiff’s meeting with the City’s human

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resource director. Because this meeting did not take place until after the

reclassification of Plaintiff’s position (and the decision to advertise the opening),

our causation inquiry is limited to Plaintiff’s later disability separation from the

City. Of course, Plaintiff herself requested disability leave; so one would think

that retaliation would take the form of denying her request rather than granting it.

In any event, as the district court noted, “there is no evidence that Miller had

anything to do with the decision by the disability review committee to grant

Plaintiff a disability separation, or that the committee based its decision on

anything other than Plaintiff’s mental health information from the City Physician

and [P]laintiff’s own doctors.” The district court acknowledged that the human

resource director who had heard Plaintiff’s complaints about Lombardi was on the

committee, “but he abstained from voting on her separation.” This analysis

properly disposed of the remainder of Plaintiff’s retaliation claim.

The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Harris L Hartz
Circuit Judge

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