Opinion
Civil No. 1:99-CV-70J.
January 7, 2005
ORDER GRANTING CORDANT TECHNOLOGIES, INC.'S RENEWED MOTION FOR SUMMARY JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE
This matter came before the Court on November 1, 2004 at 1:30 p.m. for hearing on Defendant Cordant Technologies, Inc.'s Renewed Motion for Summary Judgment. Plaintiff Michelle Boyer ("Boyer") was represented by Jack C. Helgesen of Helgesen, Waterfall Jones, P.C. Defendant Cordant Technologies, Inc. ("Cordant") was represented by Elisabeth R. Blattner and Dianna M. Gibson of Parsons Behle Latimer. (Minute Entry, dated 4/26/04 (dkt. no. 23).)
PROCEDURAL HISTORY
Prior to this hearing on Defendant's Renewed Motion, the Court had heard argument on the legal theories underlying Cordant's Renewed Motion for Summary Judgment within the context of Cordant's Motion for Summary Judgment filed July 15, 2003 and argued on August 29, 2003, and within the context of Cordant's five Motions in Limine filed May 12, May 14, May 18, May 26 and June 4, 2004 and argued during the course of the final pretrial conference in this matter held in three sessions on May 22, July 2, and July 26, 2004. (Minute Entries, (dkt. nos. 140, 158, 159, respectively).)
(Minute Entry, (dkt. no. 106).)
(Minute Entry, (dkt. no. 117).)
(Motion in Limine, (dkt. no. 134).)
(Motion in Limine, (dkt. no. 136).)
(Motion in Limine, (dkt. no. 138).)
(Motion in Limine, (dkt. no. 141).)
(Motion in Limine, (dkt. no. 145).)
Boyer's response to Cordant's Renewed Motion consists of two paragraphs indicating her intention to submit the matter without argument. ( See Plaintiff's Response to Cordant's Renewed Motion for Summary Judgment on the Ground of Lack of Severity or Pervasiveness of the Timely Allegations — Submission Without Argument, filed September 27, 2004 (dkt. no. 166) ("Boyer's Response").) In addition, Mr. Helgesen, Boyer's attorney, stated at the motion hearing,
Your honor, we've waived our argument in the case. . . . [s]o we're not here to contest the motion. I think it's been correctly described. I think with what's left it is not a case that ought to go forward.
(Transcript of Excerpt of Hearing, dated November 1, 2004, at 2:2-5, 3:17-19.)
Boyer's Response is certainly not one that would meet the nonmoving party's burden to demonstrate a genuine issue of material fact under Fed.R.Civ.P. 56. ( See Standard of Review, pp. 4-5, infra.) Under the local rules,
Contested Facts Declared in Summary Judgment Motion. A memorandum in opposition to a motion for summary judgment must begin with a section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute must be numbered, must refer with particularity to those portions of the record on which the opposing party relies and, if applicable, must state the number of the movant's fact that is disputed. All material facts of record meeting the requirements of Fed.R.Civ.P. 56 that are set forth with particularity in the statement of the movant will be deemed admitted for the purpose of summary judgment, unless specifically controverted by the statement of the opposing party identifying material facts of record meeting the requirements of Fed.R.Civ.P. 56.
DUCivR 56-1(c) (emphasis added). The district courts must construe and apply local rules in a manner consistent with Fed.R.Civ.P. 56. See Fed.R.Civ.P. 83. Boyer elected not to controvert Cordant's statement of facts. Thus, the Court finds that all supported facts asserted in Cordant's Renewed Motion for Summary Judgment are deemed to be admitted.
Moreover, the Court, having reviewed and considered Cordant's memoranda in support of its Renewed Motion for Summary Judgment and Boyer's Response, under submission without argument, having heard oral argument by Cordant and being fully advised in the premises, hereby grants Cordant's Renewed Motion for Summary Judgment for the reasons set forth below:
STANDARD OF REVIEW
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991).
The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Viktus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991)). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that there are genuine issues for trial. Viktus, at 1539 (citing Matsushita Elec. Indus. Co. v. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). A "material fact" is one that might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248. To constitute a genuine factual dispute, there must be more than a scintilla of evidence that is significantly probative in establishing the fact. Viktus, 11 F.3d at 1539.
In applying the summary judgment standard, the court must construe the factual record and reasonable inferences in the light most favorable to the party opposing summary judgment. Blue Circle Cement, Inc. v. Bd. of County Comm'rs., 27 F.3d 1499, 1503 (10th Cir. 1994); Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991).
Notably, pursuant to the local rules and Tenth Circuit law, all supported facts asserted in Cordant's Renewed Motion for Summary Judgment are deemed admitted. ( See pp. 3-4, supra.)
ANALYSIS
To maintain a Title VII claim, a plaintiff must file a Charge of Discrimination ("the Charge") with the EEOC within 300 days after the occurrence of an alleged "unlawful employment practice." See 42 U.S.C. § 2000e-5(e)(1). Under Morgan v. National R.R. Passenger Corp., 536 U.S. 101 (2002), a hostile work environment "is comprised of a series of separate acts that collectively constitute one `unlawful employment practice.'" Id. at 117. The acts may occur over a series of days or even years and are based on the "cumulative affect of individual acts." Id. at 115.
A hostile work environment claim is timely if the employee files a charge within 300 days of any act that is part of that hostile work environment. Id. at 118. Conduct occurring more than 300 days before the filing of the Charge, or conduct occurring after the Charge is filed, cannot be part of the timely hostile work environment claim unless the conduct comprises part of the same hostile work environment existing within the 300-day period. The conduct outside the 300-day period must be sufficiently related to the conduct within the 300-day period. See id. (noting that the same type of employment action perpetrated by the same managers and occurring relatively frequently are indicia of the same hostile environment).
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.
Notably, a plaintiff may recover on a Title VII hostile work environment claim for acts occurring outside the statutory time period that are part of the same hostile environment, regardless of whether the plaintiff knew or should have known the conduct was discriminatory when the acts occurred. See Boyer v. Cordant Technologies, Inc., 316 F.3d 1137, 1139-1140 (10th Cir. 2002).
I. The Workplace Environment That Existed Within the 300-day Period Preceding the Filing of Ms. Boyer's Charge of Discrimination (October 12, 1996 to August 8, 1997) is not Sufficiently Severe or Pervasive to Establish A Hostile Work Environment That Violated Title VII.
Boyer contends that nine incidents occurring within the 300-day period were part of a continuing pattern of discrimination dating back to 1982:
A. Five Of the Nine Events Are Not Of A Type That Can Support Boyer's Hostile Environment Claim.
Boyer asserts that among others, the following five incidents support her hostile work environment claim: (1) in November 1996, Boyer was transferred into CASES; (2) after returning from medical leave on November 4, 1996, Boyer was ostracized by co-workers for complaining about co-worker Scott Spencer and taking leave; (3) Boyer heard that Boyer's supervisor Howard Argyle told Charlie Ford (a co-worker) that Boyer was a troublemaker for complaining about Spencer; (4) either Dick Hill (a lead man) or Carnell Johnson (a co-worker) told Boyer that she should be fired for complaining about Spencer, and (5) on March 13, 1997, Spencer received a written memorandum from Harry Reed (a manager above Argyle).
According to Boyer's testimony, she endured unwanted touching or physical contact by white male employees, including Spencer ( e.g. patting her buttocks, "massaging" her back or thighs, pulling on brassiere straps). These incidents ended by September 1996 and apparently did not continue beyond October 13, 1996, into the 300-day period prior to her filing her charge. (Boyer Deposition at 209-13, 468-79.)
Cordant correctly argues that none of these five incidents can support Boyer's hostile work environment claim because (respectively): (1) A job transfer is a "discrete act" and not properly considered a part of a hostile environment claim; in addition, Boyer requested the November 1996 transfer into CASES; (2) any facts suggesting that Boyer was ostracized, called a trouble-maker, and told that she should be fired for complaining are evidence of retaliation, not a hostile work environment; (3) absent direct evidence, Argyle called her a trouble-maker to someone else is inadmissible hearsay, and therefore cannot support Boyer's hostile work environment claim; (4) the fact that Boyer does not recall whether Carnell Johnson or Dick Hill said that she should be fired for complaining is vague and indefinite evidence, insufficient for the purpose of summary judgment; and (5) the March 13, 1997 written memo from Reed to Spencer is irrelevant to Boyer's hostile environment claim because it is not evidence that Spencer continued to harass others within the 300-day period, or that Boyer knew about any such harassment of others by Spencer; and furthermore, Reed averred that the memo was created only to memorialize a conversation between Reed and Spencer, and to document corrective action had been taken. ( See Reed Aff. ¶¶ 8-10, 12.)
See Morgan, 536 U.S. at 115 (hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct).
(Boyer Deposition at 213, 643, 425:20-23, 426:25-427:3, 452-53.)
General harassment, if not racial or sexual, is not actionable under Title VII. See Bolden, 43 F.3d at 551. Furthermore, the Seventh Circuit has held that "[w]hile the creation of a hostile working environment motivated purely by the filing of a complaint might violate Title VII, it can only be actionable as retaliation and it must be argued as such." Berry v. Delta Airlines, Inc., 260 F.3d 803, 809 (7th Cir. 2001).
Rule 56 precludes the use of inadmissible hearsay testimony in depositions submitted in support of, or in opposition to summary judgment. See Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1555 (10th Cir. 1995).
In order to defeat summary judgment, the nonmoving party must allege concrete facts. Hooks v. Diamond Crystal Specialty Foods, Inc., 997 F.2d 793, 800 (10th Cir. 1993).
Accordingly, the Court has not considered these five instances as part of Boyer's hostile workplace environment claim.
B. The Remaining Four Of the Nine Events are Isolated Incidents Not Sufficiently Severe or Pervasive to Establish An Objectively Abusive Work Environment That Violated Title VII.
The four events that remain as part of the 300-day period in this matter include: (1) a lead man, Dick Hill, told a sexually and racially offensive "black box" joke in Boyer's presence; (2) Co-worker Carnell Johnson made comments regarding Boyer's "female problems" upon her return from medical leave; (3) a 1956 home economics textbook excerpt depicting a "proper wife's" deference and subservience to her husband was posted on a bulletin board; and (4) on July 3, 1997, Boyer was directed to work with Carnell Johnson, whom she described as "verbally mean" and who purportedly verbally harassed her because she was female. Boyer testified that she could not remember the comments he made, but that they were not sexual harassment. (Boyer Deposition at 502:24-504:22.)
To survive summary judgment on a hostile environment claim, "a 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 the victim's employment and create an abusive working environment." Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998).
The Court finds that these four incidents, although uncouth, disrespectful and offensive to Boyer, are simply not sufficiently severe or pervasive to prove the existence of a hostile, abusive work environment in the Quality Engineering workplace that violates Title VII. Morgan, 536 U.S. at 116.
II. The Events Occurring Prior to October 12, 1996 and after August 8, 1997, Are Not Part of the Same Allegedly Hostile Work Environment That Existed Within the 300-day Period Preceding the Filing of Ms. Boyer's Charge of Discrimination, Which Period Began October 12, 1996 and Ended August 8, 1997.
The workplace environment within the Plaintiff's 300-day period is different than the workplace environments existing before and after that period due to: (i) Boyer's several transfers from one workplace environment to another, (ii) Cordant's intervening disciplinary action against Scott Spencer, and (iii) the lack of relatedness between the incidents of discrimination claimed to have occurred within the 300-day period and the incidents occurring both before and after the 300-day period.
Here the undisputed facts demonstrate that Ms. Boyer worked in several different workplace environments while employed at Cordant. With each job transfer to a new physical location with new direct supervisors and co-workers, Ms. Boyer's pre-transfer workplace environment ended and a new workplace environment began. Specifically, Ms. Boyer's 1988 transfer from Cordant's Promontory facility to its Clearfield facility, her subsequent transfers within the Clearfield facility in January 1990 (from Refurbishment and Inspection to Surveillance Inspection), in April 1992 (from Surveillance Inspection to TSE), in November 1996 (from TSE to CASES), and in October 1997 (from CASES to Quality Engineering), each resulted in her placement in new buildings and with new work teams, and each served to end her previous workplace environment and begin a new one.
The record does not support a link between acts allegedly occurring within the 300-day limitation period and others preceding the period such as would warrant a finding of a single actionable hostile work environment bestriding the October 12, 1996 cut-off date. Here, there is simply no continuity or relationship between the alleged bad actors and the bad acts inside the 300-day period, and the alleged bad actors and bad acts outside the 300-day period. Rather, the undisputed facts show episodic and unrelated incidents of alleged discrimination and no relationship or continuity between these earlier or later acts and the environment that existed between October 12, 1996 and August 8, 1997, the critical 300-day period.
The Court also concludes that any hostile work environment that may have existed while Ms. Boyer was employed in TSE from April 1992 to approximately November 11, 1996 (including a one-month medical leave beginning October 7 to November 4, 1996) due to alleged harassment by Mr. Scott Spencer, ended no later than October 9, 1996, when Cordant intervened by taking disciplinary action against Mr. Spencer, and by transferring Boyer to a new workplace.
The United States Supreme Court in Morgan recognized that an allegedly hostile work environment can end as a result of intervening action by an employer. Such intervening action includes a job transfer to a new work environment, i.e., to a new location with new co-workers. See, e.g., Bailey v. Colgate-Palmolive Co., No. 99 Civ. 3228, 2003 WL 21108325, at 22-23 (S.D.N.Y. May 14, 2003) (finding that racially discriminatory actions involving different co-workers and managers in different locations are not sufficiently related); Cox v. American Drug Stores, No. 02 C. 939, 2003 WL 1903985, at 7 (N.D. Ill., April 17, 2003) (citing Morgan and holding discriminatory acts perpetrated by different actors at different locations did not constitute a continuing hostile working environment)). Intervening action sufficient to end an environment also includes disciplinary action that stops the offending conduct. See, e.g., Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003) (prompt action by employer that effectively prevented further inappropriate conduct by a particular employee precluded that employee's conduct from consideration in hostile work environment claim).
As a result, the Court concludes that absent a meaningful nexus to earlier events, Ms. Boyer's timely hostile work environment claim is limited to only the four events alleged to have occurred within the 300-day period from October 12, 1996 to August 8, 1997, which this Court has already determined to be insufficiently severe or pervasive enough to constitute a hostile workplace environment. ( See pp. 8-9, supra.)
CONCLUSION
The Court finds that Ms. Boyer's claims arising from the events within the 300-day statutory period are not sufficiently severe or pervasive enough to comprise a hostile workplace environment, and that Boyer's claims arising from the events predating the 300-day statutory period, whatever their substantive merits may be, are time-barred under 42 U.S.C. § 2000e-5(e)(1).
Accordingly, IT IS ORDERED that Cordant's Renewed Motion for Summary Judgment is GRANTED and that Plaintiff's complaint alleging her hostile work environment claim against Cordant is DISMISSED WITH PREJUDICE.
Let judgment be entered accordingly.