FILED
United States Court of Appeals
Tenth Circuit
AUG 22 2002
PATRICK FISHER
Clerk PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
MERRILEE PETERSEN,
Plaintiff-Appellant,
and
JAMES WARREN "FLAMING No. 01-4090
EAGLE" MOONEY,
Plaintiff,
v.
UTAH DEPARTMENT OF CORRECTIONS, TERRY BARTLETT, FRED VANDERVEUR, ROBERT TANSY,
O. LANE McCOTTER, and H. L. PETER HAUN, individually and in their official capacities
as allowed by law,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 98-CV-320-S)
Kathryn Collard of the Law Firm of Kathryn Collard, LC, Salt Lake City, Utah,
for Plaintiff-Appellant.
Brent A. Burnett, Assistant Attorney General (Mark L. Shurtleff, Utah Attorney
General, Litigation Division, with him on the brief), Salt Lake City, Utah, for
Defendants-Appellees.
Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.
HARTZ, Circuit Judge.
Plaintiff Merrilee Petersen appeals the district court's grant of summary
judgment on her claim against the Utah Department of Corrections (UDOC) under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and on her
claims against the individual Defendants under 42 U.S.C. 1983. All her claims
derive from the contention that the Defendants retaliated against her for opposing
discriminatory treatment of a Native American co-worker. We have jurisdiction
under 28 U.S.C. 1291. Agreeing with the district court that Petersen offered
insufficient evidence of such retaliation, we affirm the judgment below.
I. Background
On appeal of the grant of a motion for summary judgment, we affirm unless
the appellant points to evidence in the record establishing a genuine issue of
material fact. Fed. R. Civ. P. 56(c). We review the evidence, however, in the
light most favorable to the appellant. Simms v. Oklahoma ex rel. Dep't of Mental
Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999).
Petersen was an employee of the UDOC at the Central Utah Correctional Facility
(CUCF) from September 1990 until November 23, 1998. During that
time she advanced in rank, eventually becoming a lieutenant in 1995. In February
1996 she became the Program Coordinator at the CUCF, the position she held
during all the events material to this appeal. As Program Coordinator, Petersen
was responsible for organizing prison events. She supervised many CUCF
employees, including James Mooney, a Native American who served as the Native
American Career Rehabilitative Specialist.
Petersen's immediate supervisor was Captain Craig Burr, who reported to
Greg Jacquart. This trio worked on the staff of Defendant Robert Tansy, Deputy
Warden over the Housing and Programming Department. The Warden was
Defendant Fred VanDerVeur; the UDOC Director was Defendant Terry Bartlett.
The chief malefactor in Petersen's account is Tansy. According to her,
Tansy employed an abrasive and authoritarian management style and inspired fear
in his subordinates. His communications with other employees frequently
involved profanity and, more significantly for our case, racial epithets. He used
the term "lazy Indian," and, when speaking of Mooney, asked whether the natives
were restless and then let out "war whoops" when Petersen did not respond.
Petersen alleges that her opposition to racial and religious discrimination
against Mooney led to retaliation by the Defendants. The precipitating event,
according to Petersen, was a meeting in Tansy's office on March 3, 1997. Tansy
told Burr and Petersen that Mooney, a probationary employee, was due for a
midterm evaluation. Petersen questioned the necessity of the evaluation, as she
was unaware of Mooney's probationary status. But Tansy insisted that Mooney
was on probationary status and, unlike career employees who received only an
annual review, Mooney needed the midterm evaluation. Tansy instructed Burr
and Petersen to review Mooney's personnel file and consider it when filling out
the evaluation papers.
Once she and Burr left Tansy's presence, Petersen again began to question
the propriety of the evaluation. She no longer voiced concerns about the timing
of the evaluation, but instead took issue with being told to review the personnel
file. She told Burr that she thought employee evaluations were supposed to be
based on the supervisor's individual recollection and impressions of the
employee's work performance, and not on what was in a file. Accordingly,
Petersen never looked at the contents of the file. She did, however, sit down with
Burr that afternoon for nearly an hour and a half to discuss Mooney's evaluation
while Burr read aloud discipline reports from the personnel file. When Burr
called on Petersen the next day to help him finish Mooney's evaluation, she
refused, telling him only that she could not take part in something so "wrong . . .
treacherous . . . [and] deceitful."
Shortly thereafter, Petersen ran into Lynn VanDerVeur, the wife of Warden
VanDerVeur. Seeing that Petersen was upset, Ms. VanDerVeur asked what was
wrong. Petersen "just broke down" and told her that she thought Tansy was
engineering a failing report for Mooney. Petersen mentioned nothing about racial
or religious discrimination.
Petersen later learned that Ms. VanDerVeur had spoken of Petersen's
concerns with her husband, who had then talked with Tansy. On March 7, 1997,
believing that VanDerVeur's talk with Tansy might make Tansy upset with her,
Petersen went to Tansy's office to smooth things over. But when she explained
that she thought it improper for a non-immediate supervisor to direct the outcome
of an employee evaluation, Tansy launched into a tirade, calling Petersen a liar
and telling her that her "days are numbered." He also threatened to take her "out
of the information loop" with respect to all aspects of her job. During the
meeting Petersen never expressed concern that Tansy might be discriminating
against Mooney based on his race or religion.
Petersen testified that almost immediately after her meeting with Tansy, her
superiors took her "out of the information loop"; she further testified that Burr
and Jacquart later informed her that Tansy had told them to do just that. Yet she
provided only one example of being denied information: she testified that she
was not told of a May 30, 1997, banquet until the day before the event.
On May 30, 1997, Petersen made her first accusations of religious and
racial discrimination by Tansy. Mooney had been terminated on April 7 and had
filed for unemployment benefits. In connection with the unemployment
compensation claim, a UDOC attorney called Petersen, seeking her testimony
regarding the circumstances of Mooney's dismissal. Petersen refused to provide
any information, stating that, "If I tell you why [Mooney] was fired, I will surely
lose my job because I know why he was fired and I don't want to go there."
When the conversation ended, Petersen called Warden VanDerVeur. She told him
that she "can't go there" and expressed a concern that if she testified, she would
get in even more "hot water." She also said, "And now you want me to go up
against another state entity and tell them that the reason this man is fired is
because my deputy warden didn't like him and he didn't like to have to deal with
Native Americans so that he had him fired and he didn't bring his boat back."
(The mention of the boat was a reference to an episode in which Mooney had
offered to pick up Tansy's boat for him in Texas but did not follow through.)
VanDerVeur told her that she should settle down and that an assistant to UDOC
Director Bartlett would be contacting her to make arrangements for her testimony
in a telephone hearing the following Monday.
For the remainder of the work day Petersen evaded Bartlett's assistant.
After work she attended the CUCF's volunteer banquet. At the event Bartlett
found Petersen and asked why she was refusing to talk to the UDOC attorney.
She told him that she worried about the security of her job if Tansy were to
discover that she spoke out against him. She also told Bartlett that she thought
Tansy might be upset if he found out about their conversation. She mentioned her
observations of racist behavior by Tansy and said Tansy made fun of Native
Americans and was "discriminatory" towards Mooney. In response, Bartlett
assured her that he would not allow any retaliation and told her to contact him
directly if she ever experienced retaliation.
Within the next few days Petersen had a follow-up telephone conversation
with Warden VanDerVeur. Petersen again described Tansy's behavior in
performing "war whoops," stating that "all Indians are lazy," and asking "are the
natives restless tonight?" Petersen also said that she felt Tansy had been
"deceitful doing his stuff behind [Mooney's] back, not being open, how he had
told how I was supposed to create or finish, finalize this evaluation with
information I had no knowledge of." VanDerVeur agreed that Mooney had been
"railroaded."
On June 26, 1997, Petersen was informed that she was going to receive a
lateral transfer. She complained to Bartlett's office, expressing her opinion that
the transfer was retaliation by Tansy. Bartlett was not in the office, but his
assistant noted that Tansy had not obtained the proper signatures to authorize the
transfer. Petersen was not transferred.
At the end of June 1997 an assistant to Bartlett requested Petersen to
submit a written memorandum specifying all her complaints regarding Tansy's
behavior. Her response was more than six single-spaced pages long. On the
fourth page it states: "Tansy spoke of Mooney in a demeaning way. He made
digs at the Native American beliefs and ways." Otherwise, it contains no
language indicating concern about racial or religious discrimination. The focus of
the memorandum is Tansy's alleged power-hungry, obscene, and offensive
management style, and Petersen's fear that her act of complaining to one of
Tansy's superiors would bring his wrath upon her, threatening her job in the same
way it threatened Mooney's.
After receiving the memo, Bartlett ordered an investigation of Petersen's
allegations. Although Petersen asserts that the investigation was conducted as an
investigation of sexual harassment in order to discredit her, she provides no
evidence of any negative consequences to her arising from the investigation. The
investigation report was submitted to Bartlett on August 11. It concluded that
Tansy, while a strict supervisor, was not in violation of any UDOC harassment
policy guidelines or rules. Upon completion of the investigation, Petersen was
removed from Tansy's "chain of command," eliminating his supervisory authority
over her. During the latter half of 1997 and much of 1998, Tansy missed a
substantial amount of work due to illness.
In January 1998 Petersen applied for one of three openings for the rank of
captain. Of 23 applicants, Petersen was one of 13 interviewed and tested. Her
score for the written exam and interview totaled 88, ranking her seventh among
the candidates. When the final selection was made in June, the three with the
highest scores-123, 108, and 106-received the promotions. The record
contains no evidence describing the UDOC's promotion procedures. When asked
about her knowledge of such procedures, Petersen testified, "I don't know."
Meanwhile, Petersen and Mooney had filed this action on May 4, 1998.
Then, on November 23, 1998, Petersen resigned her position at the CUCF. She
moved to Oregon to join her husband, who already resided there. On
September 6, 2000, the district court granted Defendants' motion for summary
judgment with respect to Petersen's claims but denied the motion with respect to
some of Mooney's claims. Mooney's claims were then settled, while Petersen
appealed.
II. Title VII Claim
Petersen brings her claim against the UDOC under 42 U.S.C. 2000e-3(a),
which states:
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees or
applicants for employment, for an employment agency,
or joint labor-management committee controlling
apprenticeship or other training or retraining, including
on-the-job training programs, to discriminate against any
individual, or for a labor organization to discriminate
against any member thereof or applicant for
membership, because he has opposed any practice made
an unlawful employment practice by this subchapter
[Title VII], or because he has made a charge, testified,
assisted, or participated in any manner in an
investigation, proceeding, or hearing under this
subchapter.
(emphasis added). We have recognized the following three elements for such a
retaliation claim: "(1) [the plaintiff] engaged in protected opposition to
discrimination; (2) [the plaintiff] suffered an adverse employment action; and (3)
there is a causal connection between the protected activity and the adverse
employment action." O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1252 (10th
Cir. 2001).
The heart of Petersen's claim is Tansy's alleged retaliation after (1) she
refused to cooperate on the evaluation of Mooney and (2) Tansy learned that she
had complained to Warden VanDerVeur's wife about his treatment of Mooney.
What makes this retaliation claim problematic is that on neither occasion did
Petersen mention racial or religious discrimination by Tansy. We must therefore
consider whether the absence of a reference to unlawful discrimination precludes
Petersen's retaliation claim. For the following reasons, we conclude that the
absence of such a reference can preclude a retaliation claim because an employer
cannot engage in unlawful retaliation if it does not know that the employee has
opposed or is opposing a violation of Title VII.
Opposition to an employer's conduct is protected by 2000e-3(a) only if it
is opposition to a "practice made an unlawful employment practice by [Title
VII]." Title VII does not prohibit all distasteful practices by employers. Tansy
could be unconscionably rude and unfair to Mooney without violating Title VII.
In this case Tansy's treatment of Mooney would constitute an unlawful
employment practice under Title VII only if Tansy had the requisite intent-that
is, only if Tansy mistreated Mooney because of Mooney's race or religion.
Accordingly, Petersen's opposition to Tansy's treatment of Mooney would be
protected opposition only if her opposition were based on Tansy's unlawful
intent. To oppose plain vanilla rude and unfair conduct by Tansy is not to oppose
conduct "made an unlawful practice by [Title VII]." (We should note, however,
that Petersen's opposition could be protected even if she were wrong about
whether Tansy had in fact engaged in a violation of Title VII; it would be enough
if she had a "good faith belief that Title VII ha[d] been violated." Love v.
Re/Max of Am., Inc., 738 F.2d 383, 385 (10th Cir. 1984).)
It therefore follows that Petersen's superiors could not know that she was
engaging in protected opposition unless they knew that her opposition was based
(at least in part) on Tansy's bigoted motives. If, for all they knew, Petersen was
opposing Tansy's treatment of Mooney simply because the treatment violated
established practices and was unfair to Mooney, they would not know that
Petersen was "oppos[ing a] practice made an unlawful employment practice by
[Title VII]."
It is crucial, however, whether Petersen's superiors knew that she was
engaging in protected opposition. Section 2000e-3(a) bars retaliation by an
employer only if it is "because [the employee] has opposed any practice made an
unlawful employment practice by [Title VII]." An employer's action against an
employee cannot be because of that employee's protected opposition unless the
employer knows the employee has engaged in protected opposition. See Williams
v. Rice, 983 F.2d 177, 181 (10th Cir. 1993) ("plaintiff must show that the
individual who took adverse action against him knew of the employee's protected
activity"); Gallagher v. Kleinwort Benson Gov't Sec., Inc., 698 F. Supp. 1401,
1405-07 (N.D. Ill. 1988) (complaint of unequal pay did not suggest gender
discrimination). As a result, retaliation against Petersen would be prohibited by
2000e-3(a) only if the superior retaliating against her knew that her opposition
to Tansy's treatment of Mooney was motivated by a belief that he was engaging
in racial or religious discrimination.
We believe that this result is compelled not only by the natural reading of
the statutory language, but also by the purpose of the provision. The purpose of
2000e-3(a) is to let employees feel free to express condemnation of
discrimination that violates Title VII. That purpose is hardly served by imposing
sanctions upon employers who take action against employees who never
communicate their concern about unlawful discrimination.
We can now readily dispose of Petersen's Title VII retaliation claim. To
overcome the UDOC motion for summary judgment, Petersen needed to produce
evidence that both (1) the UDOC took adverse employment action against her and
(2) the motive for the adverse action was her opposition to Tansy's racial or
religious discrimination against Mooney. She failed to meet her burden.
To begin with motive, Petersen testified that on March 7, 1997, Tansy
called her a liar, announced that her "days are numbered," and threatened to take
her "out of the information loop." At that time, however, Petersen had not
communicated to anyone her belief that Tansy had discriminated against Mooney
on racial or religious grounds. Tansy was expressing his anger at Petersen for
complaining of his treatment of Mooney, but her complaint was not, as far as he
knew, protected action under Title VII. Thus, his retaliation would not violate
2000e-3(a).
To establish a Title VII retaliation claim, Petersen would need to prove that
when Tansy allegedly followed through on his threats against Petersen, he not
only had this lawful retaliatory motive but was additionally motivated by his
learning later that Petersen had complained of his discrimination against Mooney
on religious or racial grounds. See Hawkins v. PepsiCo, Inc., 203 F.3d 274, 281
(4th Cir. 2000) (plaintiff produced no evidence to show that disparate treatment
by supervisor was due to race rather than supervisor's "admittedly low regard" for
plaintiff's job performance). But Petersen presented the district court with
absolutely no evidence of such an additional motive. Nor is there evidence that
any of Petersen's other superiors had an unlawful retaliatory motive. On the
contrary, Petersen's testimony indicates that each time she asserted that Tansy had
engaged in racial or religious discrimination, her superiors received the charge
sympathetically. Petersen's failure to provide evidence of an improper motive for
alleged retaliation would in itself require judgment against her.
Petersen fails almost as badly with respect to proof of adverse employment
action. "Although the Tenth Circuit liberally defines an `adverse employment
action,' its existence is determined on a case by case basis and does not extend to
a mere inconvenience or an alteration of job responsibilities." Heno v.
Sprint/United Mgmt. Co., 208 F.3d 847, 857 (10th Cir. 2000) (internal quotation
marks and citation omitted). The employer's retaliation must be "materially
adverse employment action." Sanchez v. Denver Pub. Schs., 164 F.3d 527, 533
(10th Cir. 1998). We consider each of Petersen's allegations in turn.
First, she claims that she was taken out of the information loop. Her
supporting evidence, however, is short on specifics. At her deposition she
pointed to just one occasion on which she was not provided information. She
testified that she received only one-day's notice of an office banquet-a banquet
she actually attended. Perhaps this lack of notice was offensive to Petersen, but it
was not a materially adverse employment action.
Next, she complains of the attempt to transfer her to a new position. Yet
even if the transfer had been effected, it is uncertain whether it would constitute
an adverse employment action. In Sanchez we held that a job transfer was not an
adverse employment action even though it increased the length of the employee's
daily commute from 5-7 minutes to 30-40 minutes. Id. at 532. In any event, the
attempted job transfer in this case was aborted soon after Petersen learned of it.
This unsuccessful attempt to transfer Petersen was not a materially adverse
employment action.
Petersen also contends that she suffered unlawful retaliation when her
report of complaints about Tansy was treated as a claim of sexual harassment,
resulting in ridicule of her by fellow workers. She fails, however, to provide any
specifics regarding that ridicule. In Sanchez we held that the plaintiff, a teacher,
had not suffered a materially adverse employment action when the principal
"allegedly made several ageist remarks over the course of the school year,
including calling an older substitute teacher `an old fossil' and welcoming `bright
young teachers' at the first staff meeting." Id. at 533. In the absence of evidence
of any specific ridiculing remarks, we must draw the same conclusion here.
Constructive discharge is another component of Petersen's claim of
unlawful retaliation. She asserts that Tansy's harassment made staying at the job
intolerable. But again the claim fails for lack of evidentiary support. Her
allegations of harassment are devoid of specifics. Also, by the time she left her
job, Tansy had not been in Petersen's supervisory chain of command for about
fifteen months, and he had been out sick for much of that time. She testified that
after he was no longer her supervisor: "I was able to work. I was able to do my
job. I was able to teach. You know, I didn't get ugly phone calls from him or be
brought into the office and, you know, and I didn't have to attend staff meetings.
And that was a good thing." No reasonable factfinder could conclude from this
record that Tansy's harassment compelled Petersen to leave her job.
Finally, Petersen made one claim of adverse employment action that
satisfies the second element of a retaliation claim. She contends that she was
denied a promotion because of her protected opposition to the treatment of
Mooney. Failure to promote would be a materially adverse employment action.
Yet she offers no evidence that the denial of the promotion was caused by her
protected opposition. Her last complaint to anyone about Tansy's mistreatment of
Mooney was six months before she applied to be a captain and a year before the
positions were filled. See Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th
Cir. 1997) (one cannot infer retaliatory motive solely on basis that firing occurred
three months after protected activity). She points to no evidence that the
promotion decision was handled in an irregular manner or that anyone in the
decisionmaking process even knew of her protected opposition. See Bullington v.
United Air Lines, Inc., 186 F.3d 1301, 1321 (10th Cir. 1999) (no evidence that
those making the hiring recommendation were aware of plaintiff's protected
conduct). Her evaluation score was seventh among the applicants, and the three
persons selected had the highest three scores, all significantly higher than hers.
Her claim that she had more relevant experience than other applicants is no more
than her own subjective judgment. See id. at 1317-18 (employee's own opinions
regarding her qualifications do not give rise to a dispute of material fact regarding
pretext). Her assertion that Tansy intruded into the selection process is totally
speculative.
In short, the record before us is replete with general claims of retaliation
but no specifics. The district court had no choice but to grant summary judgment
on the Title VII claim.
III. Section 1983 Claims
A. First Amendment Claim
Petersen contends that she is entitled to relief under 1983 because the
individual Defendants took action against her in retaliation for speech that was
protected under the First Amendment (as applied to the states under the
Fourteenth Amendment). Following Pickering v. Board of Education, 391 U.S.
563 (1968), and Connick v. Myers, 461 U.S. 138 (1983), we have set forth the
following four-step test for such a claim:
First, we must determine whether the employee's speech
can be fairly characterized as constituting speech on a
matter of public concern. If it can, we must then
balance the employee's interest, as a citizen, in
commenting upon matters of public concern against the
interest of the State, as an employer, in promoting the
efficiency of the public service[s] it performs through its
employees. These first two questions are legal in nature
and must be resolved by the court.
If the balance tips in favor of the employee, the
employee next must prove that the protected speech was
a substantial factor or a motivating factor in the
detrimental employment decision. If the employee
makes this showing, then the burden shifts to the
employer to show that it would have made the same
employment decision in the absence of the protected
speech. These final questions concern causation and are
properly resolved by the factfinder.
Clinger v. N. M. Highlands Univ., Bd. of Regents, 215 F.3d 1162, 1165-66 (10th
Cir. 2000) (internal quotation marks and citations omitted).
The speech by Petersen that she contends involved matters of public
concern consisted of her "complaints . . . regarding . . . Tansy's unlawful
discrimination against Mooney on the basis of his race and religion . . . ." Thus,
to prevail she must establish that these comments by her were "a substantial
factor or a motivating factor" in adverse employment decisions taken against her.
Our review of the evidence regarding Petersen's Title VII claim against the
UDOC can be applied here. We found no evidence of adverse employment action
taken against her as a result of her complaints of racial or religious
discrimination. Accordingly, Petersen's First Amendment claim must fail. (We
also note that the alleged adverse actions-excepting only the failure to promote
Petersen to captain-taken together are probably "of insufficient gravity to
premise a First Amendment violation." Lybrook v. Members of Farmington Mun.
Sch. Bd. of Educ., 232 F.3d 1334, 1341 (10th Cir. 2000).)
B. Equal Protection Claim
Petersen's 1983 claim predicated on a denial of equal protection fails for
similar reasons. In her brief in chief, Petersen states her equal protection claim as
follows:
Petersen presented evidence from which a reasonable
jury could find that her supervisors, the Defendants
Tansy, Bartlett and VanDerVeur, "singled her out" of all
other similarly situated management level career service
employees of the Defendant UDOC, and caused and/or
permitted her to be subjected to unlawful retaliation
prohibited under state law, because she exercised her
right under the First Amendment and the Utah
Protection of Public Employees Act, to complain to her
supervisors about the unlawful race discrimination and
retaliation being practiced by the Defendant Tansy, a
high level supervisor of the Department, and complained
that such unlawful discrimination and retaliation could
subject the Defendant UDOC to legal liability.
In short, she alleges that she was treated unequally as a result of her complaints of
racial discrimination. Even assuming that this states an equal protection claim,
but see Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir. 1996) (refusing to
"recognize[] a claim under the equal protection clause for retaliation following
complaints of racial discrimination"), we hold that the claim fails for lack of
supporting evidence. As previously stated, there is no evidence in the record of
any adverse action by the individual Defendants against Petersen motivated by her
opposing racial discrimination.
C. Due Process Claim
Finally, Petersen contends that she was denied procedural and substantive
due process by the individual Defendants. We are uncertain what procedural
rights she claims to have been deprived of, and we fail to see what substantive
due process right is implicated in this case. The limited citation to authority in
her briefs is of no assistance. Nevertheless, we can quickly dispose of this
contention. Petersen claims in her brief that she
enjoyed substantive and/or procedural due process rights
under the Utah Personnel Management Act, the Utah
Anti-Discrimination Act and the Utah Protection of
Public Employees Act, not to be subjected to any
"adverse action", including his "threats" of adverse
actions, because she reported Tansy's suspected
violation of State or federal laws prohibiting
discrimination and retaliation to her supervisors.
Even if she has stated constitutional rights (which we doubt), our review of the
record reveals that she failed to produce evidence that she had suffered adverse
action for reporting any violation of laws prohibiting discrimination.
IV. Conclusion
We AFFIRM the judgment of the district court.