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FILED
United States Court of Appeals
Tenth Circuit
April 18, 2007
Elisabeth A. Shumaker
Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
SHARON ELAINE ALLEN HOLMES, DELORES
M. GIACOLETTO, JODIE JACKSON,
and RHONDA E. STEPHENS,
Plaintiffs-Appellants/Cross- Appellees,
v. Nos. 05-4179, 05-4180, 05-4199
STATE
OF
UTAH,
DEPARTMENT
OF
WORKFORCE
SERVICES,
Defendant-Appellee/Cross- Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NOS. 2:03-CV-909-TC and 2:03-CV-916-TC)
D. Bruce Oliver, Attorney at Law, Salt Lake City, Utah, for Appellants/Cross-
Appellees Holmes, Giacoletto and Jackson.
John L. Black, Jr., Attorney at Law, Salt Lake City, Utah, for Appellant/Cross-
Appellee Stephens.
Reha Deal, Assistant Utah Attorney General, Utah Attorney General's Office, Salt
Lake City, Utah, for Appellee/Cross-Appellant.
Before TYMKOVICH, and BALDOCK, Circuit Judges, and FIGA, District
Judge.(1)
FIGA, District Judge.
I. JURISDICTION FOR APPEAL
These consolidated appeals arise from an order entered June 13, 2005
granting summary judgment in favor of the defendant employer, Utah Department
of Workforce Services ("DWS"), on plaintiffs' Title VII claims of sexual
harassment and sexually hostile work environment (See the "Order" found in
App., Vol. 1 at 52-62).(1) Plaintiffs appeal the entry of judgment for the employer.
The employer cross-appeals from a discovery order denying it access to one
plaintiff's medical records. (See Appellees' Br. at 39-49). A Final Judgment was
entered on June 14, 2005. Jurisdiction for the appeal lies under 28 U.S.C. 1291.
II. SUMMARY OF CASE
As set forth in the opinion of the district judge, the plaintiffs' claims arise
primarily from the conduct of one Curtis Johnson, who was their supervisor at the
(1) The Honorable Phillip S. Figa, United States District Judge for the
District of Colorado, sitting by designation.
(1) The Record on Appeal in this case consists of four volumes of
Appendices which are cited herein as "App. Vol. __", two volumes of
supplemental appendices, cited as "Supp. App. Vol __" and one volume of a
confidential appendix filed under seal, cited as "Conf. App. Vol. 5 "
Cedar City office of DWS. Initial allegations of sexual harassment were made
against Johnson in 2001, resulting in an investigation and a three-day suspension
of Johnson without pay on August 7, 2001. Johnson retired from DWS on June
28, 2002, but continued to visit the Cedar City office thereafter because his wife
still worked there.
In March 2003, new allegations of harassment by Johnson were made by
Plaintiff Stephens relating to his following her from the DWS office to the post
office. In response to those allegations, the state agency sent an investigator,
John Levanger, to investigate the charges in March 2003, and the investigation
resulted in Mr. Johnson being barred from the Cedar City office and being
prohibited from calling its main telephone line (Order at 2).
Thereafter, each of the four plaintiffs filed charges of discrimination with
the EEOC on four different dates in March and April of 2003 as further discussed
below, alleging sexual harassment or hostile work environment. After receiving
notices of right to sue, Plaintiffs Holmes, Giacoletto and Jackson filed their Title
VII case ("Holmes, et al.") against DWS on October 14, 2003.(2) Plaintiff Stephens
filed a separate action on October 16, 2003 ("Stephens Complaint").(3) The two
actions were consolidated by the trial court on January 29, 2004 (Order at 1).
(2) The complaint in Holmes, et al., filed October 14, 2003, is found in the
App. Vol. 1, at 13-25.
(3) The Stephens complaint, filed October 16, 2003, is found in the App.
Vol. 1, at 36-45.
As the district court found, the plaintiffs in the Holmes, et al. case alleged
violations of Title VII essentially arising from a continuing sexually hostile work
environment relating primarily to the actions of Johnson (Order at 1), but also
referring to harassment and intimidation allegedly expressed by Levanger in his
March 2003 investigation. See Order at 2, n.1; Holmes, et al. Complaint at 45-
48, App. Vol. 1 at 20. The Stephens Complaint contained four causes of action,
the first alleging a violation of Title VII resulting from quid pro quo sexual
harassment (denial of promotion), the second alleging a violation of Title VII
resulting from a continuing sexually hostile work environment, and the third and
fourth alleging state common law causes of action for negligent hiring and
intentional infliction of emotional distress. See Order at 2, n.1; Stephens
Complaint at 28-50, App. Vol. 1 at 41-44. The Stephens Complaint makes no
express reference to the Levanger investigation.
Defendant filed a motion for summary judgment on August 30, 2004
pertaining to both cases, but setting forth some joint and some separate grounds
for dismissal as to each case. See Def's Mo. for Summ. J., App. Vol. 2 at 1-3. As
to Plaintiffs Holmes and Jackson in the Holmes, et al. case, and as to the First
Cause of Action alleged by Plaintiff Stephens, the motion asserted that the claims
of all three plaintiffs were subject to dismissal because they did not file their
charges of discrimination within 300 days of the last alleged act of sexual
harassment (id. at 1-2). As to the First Cause of Action in the Stephens case, the
motion also argued that the plaintiff was not promoted for a legitimate
nondiscriminatory reason, thereby entitling the defendant to judgment as a matter
of law (id. at 2). The motion also asserted that Plaintiff Stephens' Third and
Fourth Causes of Action were barred by sovereign immunity (id.). The motion
did not explicitly seek summary judgment on Plaintiff Stephens' Second Cause of
Action for hostile work environment. Finally, the motion contended that all
claims of all plaintiffs should be dismissed because their allegations did not
constitute claims for hostile work environment as a matter of law, and because
defendant exercised reasonable care to prevent and promptly correct any
harassing behavior and plaintiffs failed to take advantage of the preventive or
corrective opportunities provided to them by the employer to avoid harm (id. at
2).
III. THE DISTRICT COURT'S ORDER
The district court granted summary judgment against all four plaintiffs,
finding separately as to each plaintiff that most of the acts of alleged sexual
harassment or hostile work environment set forth in the complaint occurred more
than 300 days before each plaintiff filed her charge of discrimination with the
EEOC, and therefore were barred (Order 6-11). The district court also found that
to the extent any of the acts charged occurred during the 300-day period
preceding the charge, sometimes referred to as the filing period, they were not
sufficient by themselves to constitute hostile work environment claims. The
Court further ruled that the alleged acts that occurred within the 300-day period
did not have a sufficient "relationship" to the acts alleged which occurred outside
the 300-day period so as to be part of the "same hostile work environment" under
the Tenth Circuit decision in Duncan v. Manager, Dep't of Safety, City and
County of Denver, 397 F.3d 1300, 1308 (10th Cir. 2005) (Order at 7, 8 and 11),
and that standing alone, the incidents within the filing period were insufficient to
state a claim for hostile work environment. The district court also disposed of the
claim that the Levanger investigation constituted a hostile work environment in a
footnote stating there were no facts to support the "broad assertions of harassment
in this respect." (Order at 2, n.1).
In addition, the district court's order noted that Plaintiff Stephens'
acknowledged that her third and fourth causes of action were barred by the Utah
Governmental Immunity Act (Order at 9, n. 2). Plaintiff Stephens states in her
appellate brief that she is not challenging the grant of summary judgment as to
her first, third and fourth causes of action, but only as to the second cause of
action (hostile work environment) (Stephens' Appellate Br. at 2-3).
The trial court ruling notes that Johnson retired from the DWS on June 28,
2002 (Order at 2). His contacts with the plaintiffs thereafter were not in the
capacity of a supervisor, or even as a fellow employee, but rather as a former
supervisor, former co-worker, or spouse of a co-worker. He continued to visit the
Cedar City office because his wife continued to work for defendant at that
location (id.).
IV. ANALYSIS
As the district court granted summary judgment, we review the district
court's decision de novo, drawing all inferences in favor of the parties opposing
summary judgment. Chavez v. New Mexico, 397 F.3d 826, 831 (10th Cir. 2005).
Here, the parties do not dispute the following dates of each plaintiffs' filing of
EEOC charges, or the dates 300 days preceding the date of the filing of each
charge (sometimes referred to as the "filing period"), during which period each
plaintiff must have asserted an act of discrimination occurred as the trial court
found:
Plaintiff Date of EEOC Charge(4) 300 days prior
Holmes March 22, 2003 May 27, 2002 (Order at 6)
Giacoletto March 21, 2003 May 26, 2002 (Order at 7)
Jackson April 5, 2003 June 10, 2002 (Order at 8)
Stephens April 1, 2003 June 6, 2002 (Order at 9)
The appellate brief of Plaintiffs Holmes, Giacoletto and Jackson expressly agrees
that the 300 day "filing periods" set forth above are correct, conceding that in
each case the particular plaintiff "must have alleged incidents of harassment or
(4) Copies of the EEOC charges filed by all four plaintiffs are found in App.
Vol. 2 at 308, 310, 312 and 314.
discrimination that occurred on and after" these dates (see Appellate Br. of
Appellants Holmes, Giacoletto and Jackson ("Joint Brief") at 1, 15, 17 and 22).
Plaintiffs argue that they did so; the district court found otherwise. Following the
approach of the district judge, this opinion deals separately with each plaintiff's
particular factual situation.
A. Plaintiff Jackson
Plaintiff Jackson's case is perhaps the most straightforward to decide. As
the district judge found, Plaintiff Jackson signed a typewritten attachment to her
EEOC charge in which she details the alleged acts of harassment committed by
Johnson, the last of which occurred in 2001. See App. Vol. 4 at 33-41.
Accordingly, she does not appear to allege any specific act of sexual harassment
that occurred after June 6, 2002 as the district judge found (Order at 8-9).
In her appellate brief Plaintiff Jackson merely asserts that she described
several specific acts of harassment by Johnson that are reported in her EEOC
charge (Joint Brief at 17-20). But as the district court found, and as we concur,
they all occurred well before June 10, 2002. The Joint Brief asserts that she also
reported conduct that "continued well after 2001" attributing inappropriate
comments to Johnson (id. at 20) but the brief provides no specific incidents or
dates (see App. Vol. 2 at 296). To the extent these assertions are found in her
typewritten statement, there are also no dates. Therefore, to the extent the district
concluded that Plaintiff Jackson failed to allege sufficient acts of harassment
within the filing period, this Court agrees.
Finally, Plaintiff Jackson, as do the other plaintiffs in Holmes, et al.,
asserts that the conduct of Levanger's investigation in March 2003 constitutes an
act creating a hostile work environment. This separate allegation is addressed
below.
B. Plaintiff Holmes
This plaintiff's claim is perhaps the next most straightforward case because
in December 2001, long before she filed her EEOC charge, and well beyond the
300-day filing period, she transferred out of the Cedar City office to a different
DWS location (Order at 6). Thus after December 2001, she was no longer under
Johnson's supervision. Moreover, the only conduct that she alleges occurred after
the May 27, 2002 date (i.e., during her filing period) was an incident on June 3,
2002, when she went back to the Cedar City office for the purpose of visiting
friends (apparently not on job-related business) and Johnson hugged her allegedly
in "an inappropriate manner" (id. at 6).
The trial court found the fact that Plaintiff Holmes was not working in the
allegedly hostile work environment of the Cedar City office for over a year before
she filed her EEOC charge, essentially precludes her harassment claim, and the
single incident which occurred in May 2002 was not enough to create a "hostile
work environment" as: 1) it occurred long after she had left the allegedly hostile
environment of the Cedar City office; 2) it occurred when plaintiff was no longer
working in any capacity with Johnson; and 3) there was no relationship between
this alleged act and the acts that occurred before the filing period so as to make a
pattern of continuing acts to support a hostile environment claim. Plaintiff
Holmes' transfer constituted "an intervening act rendering the hug not part of the
same hostile working environment she experienced before her transfer" under the
Duncan analysis (id. at 7).
As the trial court correctly noted, the Duncan opinion contains a number of
general propositions that plainly limit a Title VII plaintiff's entitlement to link
together disparate acts of discrimination in an effort to establish a pattern of
sexual harassment amounting to a hostile work environment. For example, the
Duncan panel stated: "Title VII is not intended to allow employees to dredge up
old grievances; they must promptly report and take action on discriminatory acts
when they occur. Unlitigated bygones are bygones." 397 F.3d at 1308.
In analyzing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101,
117 (2002), the Supreme Court case recognizing that so long as an act
contributing to the hostile work environment took place inside the 300-day filing
period, acts outside the period may be considered to complete the history of acts
comprising the hostile environment, Judge McConnell wrote for the Duncan
panel:
Morgan explains that when analyzing a hostile work
environment claim spanning longer than 300 days "[a]
court's task is to determine whether the acts about which
an employee complains are part of the same actionable
hostile work environment practice, and if so, whether
any act falls within the statutory time period." Id. at
120. Morgan emphasizes that there must be a
relationship between acts alleged after the beginning of
the filing period and the acts alleged before the filing
period: "if an act on day 401 had no relation to the acts
between days 1-100, or for some other reason, such as
certain intervening action by the employer, was no
longer part of the same hostile environment claim, then
the employee cannot recover for the previous acts, at
least not by reference to the day 401 act." Id. at 118.
397 F.3d at 1308-09. The panel further summarized the application of Morgan as
follows:
Morgan holds that a series of alleged events comprises
the same hostile environment where "the pre- and post-
limitations period incidents involve[d] the same type of
employment actions, occurred relatively frequently, and
were perpetrated by the same managers." Id. at 120
397 F.3d at 1309.
As noted above, the district court in the instant case applied the above
analysis, finding that the departure of Plaintiff Holmes from the Cedar City office
constituted an "intervening act" that separated her from the allegedly hostile work
environment. The district court therefore found that the one act that occurred in
May 2002, was not sufficiently linked to the past conduct so as to rise to the level
of creating a hostile work environment with respect to Plaintiff Holmes. Based
on the above circumstances, this panel agrees that the district court properly
found that the one incident which allegedly occurred in June 2002 was not
sufficiently severe and pervasive to constitute an environment of sexual hostility
with respect to Plaintiff Holmes, nor can the incident be linked with prior
incidents to constitute a sexually hostile work environment.
This panel would also note that it appears Plaintiff Holmes did not file any
contemporaneous complaint, much less a contemporaneous EEOC charge, in
connection with the June 3, 2002 incident.(5) Thus, there is some doubt whether
she herself perceived the incident to be so severe as to be indicative of sexual
harassment, but more importantly, absent a complaint from the employee, there
was no notice to the employer that would have enabled it to take any kind of
remedial action. As this Court stated in Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 673 (10th Cir. 1998), for an employer to have liability for failing to remedy
a sexually hostile work environment, the plaintiff must establish that the
employer had actual or constructive knowledge of the hostile work environment
but did not adequately respond to notice of the harassment, citing to Harrison v.
Eddy Potash, Inc., 112 F.3d 1437, 1444 (10th Cir. 1997). Here, there is no indication that the employer had timely notice of the May 2002 incident that
would have required a reasonable response.
C. Plaintiff Giacoletto
Plaintiff Giacoletto alleged four acts of harassment, three of which
occurred in 2001, but only one of which occurred after May 26, 2002 during her
filing period. She asserted that in November 2002, after Johnson's retirement but
apparently during one of his visits to the Cedar City office where Plaintiff
Giacoletto was working with Johnson's wife, a back rub to which she consented
turned into "inappropriate physical contact" (Order at 8). The district court, again
relying on Duncan, found this one incident insufficient to state a claim for hostile
work environment because it occurred 16 months after the previous alleged acts
of 2001, and was so attenuated in time and circumstance from the 2001 acts that it
"cannot be said to be part of the same hostile work environment" (Order at 8).
The district court further noted that between the time of Plaintiff Giacoletto's
allegations regarding incidents in 2001, and the one November 2002 incident that
occurred within the filing period, Johnson had been disciplined by the employer
as a result of a Department of Human Resources investigation, and had retired
from the DWS, so that a jury could not rationally conclude that the November
(5) In an affidavit submitted in opposition to defendant's motion for
summary judgment, Plaintiff Holmes describes the June 3, 2002 incident as
mortifying, but does not state she reported it to the employer (Conf. App. Vol. 5
at 9.). Elsewhere in her affidavit, Plaintiff Holmes states that she and the other
plaintiffs chose to file "directly to the EEOC" after the employer, in March 2003,
responded inadequately to Plaintiff Stephens' complaint, further suggesting to the
Court that no complaint was made to the employer about the June 2002 incident
until March 2003. Id. at 3.
2002 incident is part of the same alleged hostile work environment that allegedly
existed before the investigation. Standing alone, the one incident in November
was not enough to support a claim of hostile work environment (Order at 8).
In considering whether the district court properly applied the Duncan
analysis, this panel notes that unlike the situation involving Plaintiff Holmes, the
incident of November 2002 involving Plaintiff Giacoletto occurred in the office
where she still worked. On the other hand, as the trial court pointed out, unlike
the situation involving Plaintiff Holmes, Johnson was no longer a supervisor or
employee of the defendant at the time of the November 2002 incident. This is not
to say that an employer is not obligated to protect employees from sexual
harassment initiated by outsiders, customers, nonemployees or visitors to
workplace premises, for they surely are as the Tenth Circuit held in Lockhard v.
Pizza Hut, Inc., 162 F.3d 1062, 1073 (10th Cir. 1998) ("EEOC regulations
specifically provide that an employer may also be responsible for the acts
of non-employees, with respect to sexual harassment of employees in the
workplace, where the employer (or its agents or supervisory employees) knows or
should have known of the conduct and fails to take immediate and appropriate
corrective action.") (internal citation omitted). But even assuming such liability
exists, the question remains whether the workplace is "permeated with
discriminatory intimidation, ridicule, and insult." Id. at 1073 citing Harris v.
Forklift Sys. Inc., 510 U.S. 17, 21 (1993) (quotations marks deleted).
Here, given the long passage of time from the prior reported conduct of
Johnson, the fact that he had been reprimanded by the employer during the
interim, the fact that he was no longer in a supervisory capacity or even a fellow
employee, collectively provide support justifying the trial court's conclusion that
under the Duncan analysis this incident in November 2002 cannot be found to be
part of the same hostile environment that allegedly existed in 2001.
This panel also agrees with the district court that standing alone this
incident of November 2002 does not create a sexually hostile work environment.
As with the incident involving Plaintiff Holmes, it does not appear that Plaintiff
Giacoletto reported this incident to the employer close to the time it happened,
but rather waited until March 2003 to provide the employer with notice of the
November 2002 incident and then only when she filed her EEOC charge.(6) This
again raises a question as to the severity of the incident as perceived by the
employee, particularly given her admission that she initiated the physical contact
by requesting a back rub. And, significantly, absent an employee report, the
employer was not put on notice of the alleged conduct so as to enable it to take
any kind of remedial measure.
Thus, as is the case with Plaintiff Holmes, this Court agrees that the district
court properly found that the one incident that allegedly occurred in November 2002 was not sufficiently severe and pervasive to constitute an environment of
sexual hostility with respect to Plaintiff Giacoletto, nor can the incident be linked
with prior incidents to make out a sexually hostile work environment.
D. Plaintiff Stephens
As noted above, Plaintiff Stephens' separate complaint alleged a claim for
quid pro quo sexual harassment relating to the denial of a promotion (First Cause
of Action), which the trial court dismissed, but which order is not being
challenged on appeal.
Plaintiff Stephens' separate claim of hostile work environment relates to
two acts which occurred after June 6, 2002 during her filing period, namely the
denial of a promotion in November 2002 and an incident in March 2003, when
Johnson allegedly followed her from the DWS office to the local post office in a
manner that she describes as "stalking" and grabbed her "frightening her to
death." (Pl. Stephens' Opp'n to Summ. J., App. Vol. 3 at 167).
The trial court found that these two acts were insufficient to make out a
hostile work environment claim. As with Plaintiffs Holmes and Giacoletto, the
trial court found these acts too "attenuated" under the Duncan analysis from the
earlier acts of harassment because Johnson had nothing to do with the denial of
(6) Plaintiff Giacoletto's affidavit submitted in opposition to defendant's
motion for summary judgment describes the November 2002 incident as having
been initiated by her, and although claiming it amounted to conduct "based on
sex," does not state she reported it to the employer (Conf. App. Vol. 5 at 87).
Elsewhere in her affidavit, Plaintiff Giacoletto states that she and the other
plaintiffs chose to file "directly to the EEOC" after the employer, in March 2003,
responded inadequately to Plaintiff Stephens' complaint, further suggesting that
no complaint was made to the employer over the November 2002 incident until
March 2003. Id. at 83.
Plaintiff Stephens' promotion in November 2002 (having retired) and being
followed to the post office is not connected because Johnson was "not constantly
present in the [Cedar City] office" at the time (Order at 11).
On appeal, Plaintiff Stephens' separate appellate brief makes an
independent argument for reversal. Before reaching the argument that the
incident at the post office is alone sufficient to support a claim for sexually
hostile work environment, she instead argues for reversal on the ground she had
no notice that the trial court was contemplating summary judgment on the issue of
the timeliness of her EEOC charge, at least as to her hostile environment claim.
She claims she was unfairly prejudiced when it was raised at the oral argument on
February 16, 2005 before the trial court (Stephens Appellate Br. at 3, 11-15). She
claims the district court erroneously raised the issue sua sponte, and had she had
notice, she would have pointed to other acts of harassment that occurred during
the filing period. Id.
1. Analysis of sua sponte grant of summary judgment
This court first addresses Plaintiff Stephens argument that the trial court
erred in granting summary judgment on this ground, for if it did, this court need
not reach her other arguments.
While Plaintiff Stephens asserts in her appellate brief that there was other
evidence of harassment during her filing period which she would have offered had
she had notice of this issue at the hearing, and cites to deposition testimony which
she claims is to that effect (see id. at 5, 7), the deposition excerpts attached to
her brief at Addendum D contain only general statements of harassment without
specific dates. Moreover, given the fact that her filing period began June 10,
2002, and Johnson left employment with defendant on June 28, 2002, there is no
basis from which to infer that these undated events referred to in her deposition
occurred during the filing period after June 10, 2002.
In response to this independent argument, the defendant asserts that a
district court has the power to enter summary judgment sua sponte, provided that
the losing party was on notice that she had to come forward with all of her
evidence, citing to Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). Defendant
claims that the trial judge on the record at the hearing on defendant's motion on
February 16, 2005 raised the issue of the timeliness of Plaintiff Stephens' second
claim, and gave her an opportunity to come forward with evidence (Def.'s
Appellate Br. at 5, and 22-24, citing to transcript of hearing, App. Vol. 1 at 100-
01).
We note that the transcript of the February 16, 2005 hearing reveals that the
district judge listed the incidents mentioned in Plaintiff Stephens' charge which
had occurred within the 300 days preceding the filing of the charge, and requested
Plaintiff Stephens' counsel to state whether there was anything else he wished to
offer. Counsel responded stating "there really is nothing I have to add to what the
court has stated." Id. at 101. Defendant thus asserts that Plaintiff Stephens had
the opportunity to provide additional evidence but did not argue that additional
evidence was available in the summary judgment record as she now argues on
appeal (Def.'s Appellate Br. at 25).
In First Am. Kickapoo Operations, L.L.C. v. Multimedia Games, Inc., 412
F.3d 1166 (10th Cir. 2005), a case relied on by defendant here, this Court,
quoting Celotex, reiterated that a sua sponte grant of summary judgment although
not encouraged, is permissible, provided that the losing party was put on notice to
come forward with all its evidence. 412 F.3d at 1166, 1170 (10th Cir. 2005). As
the panel noted, in that case the district court before ruling "invited the parties to
proffer any extrinsic evidence they thought relevant to this question." Id.
However, the district court did so by written order of September 2, 2003, and not
on the record in open court, and appears to have issued its written order shortly
thereafter on September 6, 2003. Id. at 1169.
This is not exactly what happened here. Yet, it is clear from the transcript
that Plaintiff Stephens' counsel was given an opportunity to tender evidence, and
he could have cited to the deposition transcript then, as he now does in the
appellate brief. The same deposition excerpts were part of the record before the
trial court. See Ex. 1 to Stephens' Opp'n to Def.'s Mo. for Summ. J., Excerpts
from Stephens' deposition, App. Vol. 3, 210-38. If counsel believed the
deposition provided evidence of post-June 10, 2002 harassing conduct by
Johnson, he had the opportunity to come forward with the evidence before the
district court ruled, but did not do so.
In addition, defendant contends that Plaintiff Stephens was not prejudiced
by the lack of notice because she had no probative evidence to offer of post-June
2002 harassing conduct (Def.'s Br. at 29-35). In Ward v. State of Utah, this Court
held that "[i]f a losing party was not prejudiced by the lack of notice, we will not
reverse simply because the grant of summary judgment came sua sponte." 398
F.3d 1239, 1245-46 (10th Cir. 2005).
The defendant's appellate brief makes a persuasive argument that Plaintiff
Stephens' deposition testimony, attached to the appellate brief and contained in
the record before the trial court even though not expressly cited to the trial judge,
is too vague to establish a pattern of severe and pervasive conduct required to
make out a hostile work environment claim. As noted above, this testimony is
completely devoid of dates to permit the court or jury to determine that the
described acts occurred during the filing period (Def's Br. at 30-33). Having
reviewed the deposition excerpts ourselves (contained in Addendum D to
Stephens Br.), this panel is unable to identify a specific date during the filing
period on which any described harassing act supposedly occurred.
Thus, even if plaintiff's counsel had tendered these deposition excerpts to
the trial court they would not have provided evidence of any specific harassing
act during the filing period. Thus, Plaintiff Stephens' argument for reversal on
the ground that the trial court erred by a sua sponte entry of summary judgment
must be rejected.
2. Whether Plaintiff Stephens brought forth sufficient
evidence to support her remaining claim of a sexually
hostile environment
The question remains whether the two incidents that occurred within the
filing period asserted by Plaintiff Stephens were sufficient to submit a claim to a
jury for a sexually hostile work environment in violation of Title VII. As noted,
the district court found that they were not, as they were too attenuated from
earlier alleged harassing conduct under the Duncan analysis to constitute a pattern
of harassment, and standing alone did not support such a claim (Order at 11).
Here too, as in the situations involving Plaintiffs Holmes and Giacoletto,
the passage of time since the 2001 conduct, the intervening discipline of Johnson,
the fact that he was no longer a supervisor after June 2002, and the absence of
evidence that he played any role in the alleged denial of promotion to Plaintiff
Stephens in November 2002, all support the trial court's conclusions that the pre-
filing period conduct of 2001 cannot be properly linked with the events Plaintiff
Stephens alleges to have occurred in November 2002 and March 2003 to support
an inference of a sexually hostile work environment fostered by the employer.
In addition, this panel agrees that the two incidents that did occur during
the filing period do not rise to the level of creating a hostile work environment.
First, as noted, even if Plaintiff Stephens was denied a promotion in November
2002, she has come forward with no evidence that the denial was in any way
connected to conduct of Johnson, who by then had been gone from employment
by defendant for at least four or five months. Second, while the actions of
Johnson in allegedly stalking Plaintiff Stephens in March 2003, and in allegedly
grabbing her and frightening her may by themselves be considered severe, this
court notes, as did the district court, that such actions did not occur on the
premises of the employer, or otherwise in connection with her work, and did not
involve a fellow employee or supervisor. Plaintiff Stephens has cited no cases to
suggest that employers have a duty under Title VII to protect employees off the
work premises from the conduct of nonemployees, even if such conduct may be
found to be severe in its sexual overtones. The fact that Johnson may have
committed an assault or some other tort against Plaintiff Stephens off the work
premises does not automatically translate into a Title VII violation by her
employer.
Third, this Court notes that Plaintiff Stephens, unlike her counterparts,
apparently did promptly report the March 2003 incident at the post office (see
App. Vol. 4 at 309). As the district court found, when Plaintiff Stephens reported
that she "felt harassed by Mr. Johnson when he followed her from the DWS office
to the post office" the employer conducted an investigation and "barred" Johnson
from entering the Cedar City Employment Center and prohibited him from calling
it main telephone line" (Order at 2). By letter dated March 27, 2003, Plaintiff
Stephens was advised of the remedial measures imposed by defendant against
Johnson (see App. Vol. 2 at 305).
In Adler v. Wal-Mart Stores, Inc., supra, this Court further explained the
employer's liability for allowing a sexually hostile work environment after it is
reported to the employer by the employee arises only if the employer fails to take
adequate remedial and preventative responses to any actually or constructively
known harassment. 144 F.3d at 673. A court may determine on summary
judgment whether an employer's responses to claims of sexual harassment were
reasonable as a matter of law. Scarberry v. ExxonMobil Oil Corp., 28 F.3d 1255,
1257 (10th Cir. 2003).
Although the district court did not expressly so find, it appears to this Court
that the actions of barring Johnson from the Cedar City office and prohibiting him
from calling the main line, where he might contact other employees, is an adequate
and reasonable response to the type of off-premises harassment allegedly suffered
by Plaintiff Stephens. Thus, alternative grounds exist to support the trial court's
grant of summary judgment on Stephens' claim, even if Johnson's actions of
March 2003 alone were enough to support a claim for sexually hostile work
environment. Here, it appears the employer took reasonable and prompt measures
to address the conduct of the perpetrator given the circumstances under which the
conduct occurred.
E. The Levanger Investigation
The complaint filed by Plaintiff Stephens makes no allegations regarding the
investigation carried out by Mr. Levanger, and therefore makes no claims that the
investigation itself was sexually discriminatory in violation of Title VII (see App.
Vol. 1 at 36-45). The only averments regarding the Levanger investigation are
found in the complaint filed in Holmes, et al. The plaintiffs in that case
essentially alleged that in March 2003 they were interviewed off-site in Cedar City
by Mr. Levanger of the defendant's Human Resources Department (App. Vol. 1 at
20). They allege that they were interviewed without attorneys present, although
they had requested to bring attorneys, the interviews were recorded, and the results
of that investigation "have not been made known" to them, leaving them to
conclude that the interview was conducted at the behest of "Risk Management,"
was not for "their benefit" and was not conducted in good faith (id.).(7)
While the appellants' brief now characterizes the conduct of Mr. Levanger
as consisting of "harassing interviews" and including "reported intimidation and
threats" (Appellant's Joint Br. at 6), no such allegations are found in plaintiffs'
complaint. Moreover, as noted above, each of these three plaintiffs filed EEOC
charges in March or April 2003, on the dates set forth above. This panel has
reviewed the charges filed by each plaintiff, and the typewritten attachment to
Plaintiff Jackson's charge, and finds no reference in them to any threatening,
intimidating or harassing conduct by Mr. Levanger, or any mention whatsoever of
Mr. Levanger or his investigation.
(7) As noted above, the results of the investigation, that is the barring of Mr.
Johnson from the Cedar City office, were made known to Plaintiff Stephens.
Against this factual background, the district judge disposed of the claim
that the Levanger investigation constituted a hostile environment in a footnote
stating the allegations that plaintiff felt harassed by Mr. Levanger are "wholly
separate from the Plaintiffs' claim of a hostile work environment" and plaintiffs
had not provided facts to support the "broad assertions of harassment in this
respect." (Order at 2 n.1). On appeal, plaintiffs argue that Mr. Levanger's alleged
conduct, although arguably "gender neutral" in that he may have acted in the same
manner as to any complainant, should have been found to be sexually
discriminatory in this case due to the "entire body of conduct" involving plaintiffs'
interactions with Johnson, citing to Chavez, 397 F.3d at 835-36 (Appellants' Br. at
34).
While the reasons for entering summary judgment on this aspect of these
three plaintiffs' claims of a sexually hostile work environment perhaps could have
been spelled out by the district court in more detail, this Court nonetheless agrees
that summary judgment on these claims was correctly entered, without the
necessity of reaching the plaintiffs' argument based on Chavez. It is fundamental
law that a plaintiff may not assert a Title VII claim with respect to conduct not
first asserted in a discrimination charge filed with the EEOC. See e.g. Simms v.
Oklahoma ex rel. Dept. of Mental Health, 165 F.3d 1321, 1326 (10th Cir.), cert.
denied, 528 U.S. 815 (1999) and cases cited therein. None of the three plaintiffs
here filed a charge asserting that Mr. Levanger's conduct amounted to sexual
harassment. Accordingly, the trial court's entry of summary judgment is correct.
V. DEFENDANT'S CROSS-APPEAL
In light of the foregoing ruling on the district court's summary judgment
order, the defendant's cross-appeal of the discovery order is deemed moot.
VI. CONCLUSION
For all these reasons, the district court's order granting summary judgment
as to the claims of all four appellants on their claims under Title VII is affirmed.
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