Kirk v. City of Tulsa, OK , 72 F. App'x 747 ( 2003 )

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not binding precedent, except under the doctrines of law of the case, res judicata,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