Bateman v. United Parcel Service, Inc. , 31 F. App'x 593 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 20 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CARRIE BATEMAN,
Plaintiff-Appellant,
v. No. 01-6136
(D.C. No. 00-CIV-1062-C)
UNITED PARCEL SERVICE, INC., (W.D. Okla.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before MURPHY , McKAY , and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiff filed a complaint against her employer, United Parcel Service, Inc.
(UPS), alleging harassment based on her sex and gender and the creation of a
*
This order and judgment is not binding precedent, except under the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.
hostile work environment, all in violation of 42 U.S.C. § 2000e through
§ 2000e-17 (Title VII). She alleged that the incidents forming the basis of the
action occurred between August and September of 1999 and were caused
primarily by her then-supervisor Marc Cortez. Plaintiff alleged she was treated
more harshly than the male UPS drivers because of her gender.
Following discovery and in particular the taking of plaintiff’s deposition,
UPS moved for summary judgment for lack of any admissible evidence to support
either a gender discrimination or hostile environment claim. Plaintiff replied,
challenging defendant’s undisputed facts and offering her own, a number of
which UPS challenged as incorrect, irrelevant, and/or inadmissible. The district
court granted summary judgment for UPS, framing plaintiff’s allegations as
follows:
Plaintiff filed this action alleging violation of 42 U.S.C. § 2003,
et seq. (“Title VII”). According to Plaintiff, her employer treated
her differently because of her gender. Plaintiff alleges that her
supervisor sexually harassed her and subjected her to a hostile work
environment. Plaintiff argues Defendant’s decision to terminate her
for violations of company policy is pretextual. Defendant denies
Plaintiff’s allegations and asserts she was treated the same as other
employees. Defendant denies Plaintiff’s claim of pretext and argues
she was terminated for legitimate, nondiscriminatory reasons.
Defendant brought the present motion, alleging there are no disputed
material facts regarding Plaintiff’s claims and it is entitled to
judgment as a matter of law.
Aplt. App. at 273.
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At the outset, we note that the alleged sexual harassment from her
supervisor was not by Marc Cortez, her supervisor during the relevant time
period, Aplt. App. at 71, but by previous supervisors Brian Schmidt and Rob
Stone, both of whom apparently asked her out on dates in the late 1980s. These
events occurred more than 300 days prior to the filing of plaintiff’s EEOC
complaint. See Martin v. Nannie & The Newborns, Inc. , 3 F.3d 1410, 1414
(10th Cir. 1993) (claims based on incidents occurring more than 300 days prior to
complaint are time barred). Further, the alleged incidents with Schmidt and Stone
were nowhere mentioned in either the EEOC complaint, Aplt. App. at 157, the
complaint filed in district court, Aplee. Supp. App. at 1-3, or in plaintiff’s
combined objection to defendant’s motion for summary judgment/cross motion for
summary judgment, Aplt. App. at 217-28. In fact, references to these incidents
with Schmidt and Stone did not surface until her statement of facts on appeal.
Aplt. Br. at 6. UPS listed plaintiff’s allegations of harassment by Schmidt and
Stone in its motion for summary judgment; however, this does not convert these
allegations into undisputed factual occurrences submitted by UPS. See Aplt. Br.
at 21.
Moreover, plaintiff’s attempt to portray Schmidt’s alleged harassment as
continuing is quite vague (“[Schmidt] has reappeared as my supervisor in various
areas and has just not really been that professional when it comes to dealing with
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me on the job.”). Aplt. App. at 38. Schmidt is not plaintiff’s current supervisor,
id. , and although plaintiff believed Schmidt has said things about her to UPS
management, she did not know to whom he may have spoken or what he may have
said. Id. at 38-40. “[A] plaintiff’s allegations alone will not defeat summary
judgment.” Morgan v. Hilti, Inc. , 108 F.3d 1319, 1324 (10th Cir. 1997).
In addition, we note that plaintiff was not terminated in the traditional
sense of being fired. At least when her deposition was taken in November of
2000, she was still working for UPS. The termination referred to is called a
“working termination,” a status for employees whose potential terminations are in
the contract grievance process. In her deposition plaintiff referred to at least
three working terminations she had had, none of which resulted in her permanent
termination from UPS employment, although one apparently resulted in a brief
suspension. Aplt. App. at 102. Indeed, at the time of her deposition she was
under yet another working termination. Id. at 103.
We review the district court’s grant of summary judgment de novo,
applying the same legal standards under Fed. R. Civ. P. 56(c), as did the district
court, and examining the factual record in the light most favoring the party
opposing summary judgment. See Gunnell v. Utah Valley State Coll. , 152 F.3d
1253, 1259 (10th Cir. 1998). “Summary judgment is appropriate ‘if the
pleadings, depositions, answers to interrogatories, and admissions on file,
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together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.’” Munoz v. St. Mary-Corwin Hosp. , 221 F.3d 1160, 1164 (10th Cir. 2000)
(quoting Rule 56(c)). The movant has the initial burden to show the absence of
evidence to support the nonmovant’s case. Id. Once this burden has been met,
however, the nonmoving party must go beyond the pleadings and present
“evidence sufficient to establish the existence, as a triable issue, of any essential
and contested element of her case.” Perry v. Woodward , 199 F.3d 1126, 1131
(10th Cir. 1999). In addition, the district court may not consider hearsay evidence
in a deposition submitted to defeat summary judgment. Starr v. Pearle Vision,
Inc. , 54 F.3d 1548, 1555 (10th Cir. 1995); see also Pastran v. K-Mart Corp. ,
210 F.3d 1201, 1203 n.1 (10th Cir. 2000) (“When reviewing an order granting
summary judgment, we may only consider admissible evidence.”). Thus, it
matters not that defendant made reference to portions of plaintiff’s deposition or
that the district court disregarded portions considered speculative or inadmissible
hearsay.
The district court determined that plaintiff failed to establish a prima facie
case based on either gender discrimination or a hostile work environment.
We agree. We have held that “[g]ender discrimination can be based upon sexual
harassment or a hostile work environment.” See Gross v. Burggraf Constr. Co. ,
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53 F.3d 1531, 1535 (10th Cir. 1995) (citing Meritor Savs. Bank, FSB v. Vinson ,
477 U.S. 57, 65 (1986)). Notwithstanding plaintiff’s general assertions of sexual
harassment, she specifically denied that her supervisor, Marc Cortez, sexually
harassed her. Aplt. App. at 71. Thus, the issue is whether the district court erred
in granting summary judgment because a genuine issue of material fact exists as
to whether Cortez’s conduct and/or statements created a hostile working
environment for plaintiff because of her gender. Gross , 53 F.3d at 1535.
Whether an environment is hostile is determined by examining the totality of the
circumstances. See Harris v. Forklift Sys., Inc. , 510 U.S. 17, 23 (1993). “The
critical issue . . . is whether members of one sex are exposed to disadvantageous
terms or conditions of employment to which members of the other sex are not
exposed.” Id. at 25 (Ginsberg, J., concurring). Conduct not severe or pervasive
enough to create an environment that a reasonable person would find hostile is
simply beyond the purview of Title VII. Id. at 21. “‘If the nature of an
employee’s environment, however unpleasant, is not due to her gender , she has
not been the victim of sex discrimination as a result of that environment.’”
Gross , 53 F.3d at 1537 (quoting Stahl v. Sun Microsystems, Inc. , 19 F.3d 533,
538 (10th Cir. 1994) )(emphasis in Gross ). “Normal job stress does not constitute
a hostile or abusive work environment,” nor are personality conflicts between
employees the business of federal courts. Trujillo v. Univ. of Colo. Health
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Sciences Ctr. , 157 F.3d 1211, 1214 (10th Cir. 1998). “We cannot vilify every
supervisor that implements a policy with which an employee disagrees or that
monitors [the] employees’ conduct.” Id.The district court held that plaintiff had failed to establish a prima facie
case because she did not supply “evidence, admissible at trial, to demonstrate
[d]efendant’s treatment of her, even if it is assumed to be negative, was based on
her sex.” Aplt. App. at 276. This was due in the main because plaintiff’s
evidence was “either speculative or based on inadmissible evidence.” Id. at 277.
Again we agree. Plaintiff’s testimony regarding the different treatment of her
male co-workers was not based on personal knowledge but on what she was told
by others. For example, her knowledge that no other drivers had been written up
for “overalloweds,” 1
was based on her having asked the other drivers and being
told by two of them that they had not. This is hearsay, notwithstanding plaintiff’s
attempt to characterize it as “relevant to not [sic] to prove the truth of the matter
asserted but to prove that such statements were made to [plaintiff].” Aplt. Br.
at 13. Contrary to plaintiff’s claim, she in fact offered this testimony for the truth
of what they told her, i.e., that they did not receive write-ups for overalloweds.
Likewise, with respect to her contention that she was disciplined for using a curse
1
An “overallowed” is a failure to complete the prescribed delivery route in a
timely manner.
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word while a supervisor was not, her knowledge of the incident with the
supervisor is based solely on what a union steward told her, not on anything she
heard. See Aplt. App. at 51-52. Plaintiff’s testimony as to “what [the union
steward] allegedly heard was not based on [plaintiff’s] personal knowledge of the
facts,” and the alleged statement of the steward cannot be considered in reviewing
the order granting summary judgment. Gross , 53 F.3d at 1541.
Although she claimed to have been subjected to more “ride alongs” 2
than
any other worker, by her own admission, she was overallowed on the days her
supervisor said she was. Aplt. App. at 57. Indeed, she submitted documentary
evidence reflecting that she had the highest average of overalloweds in a group of
twenty-five drivers. Id. at 265. In any event, she filed a grievance regarding her
claim of excessive ride alongs and was informed that there was no violation of the
collective bargaining agreement (CBA). See Aplt. App. at 176-78. Other than
plaintiff’s disagreement with the meaning of the CBA, the facts as alleged amount
to no more than routine employee monitoring or a disagreement with her
supervisor. See Trujillo , 157 F.3d at 1214.
2
A “ride along” consists of a supervisor accompanying a driver on the route
primarily to advise the driver on more efficient time management to help avoid
overalloweds.
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She also alleges that she was written up for dress code violations while
male drivers were not. Again, the statement that “she knows the other drivers
were not written up for similar violations” is simply unsubstantiated.
Next, she argues that Marc Cortez told her she could not do her job because
she was a woman. However, she did not know when he said this to her except to
note that “[i]t could be in a grievance.” Aplt. App. at 249. When questioned
further as to whether she was going on her own subjective belief she thought he
was making such comments because she was female, she could not remember if
Cortez had ever used words like “‘[b]ecause you’re a woman, you can’t do the
job.’” Id. at 72. This claim is therefore too speculative to withstand summary
judgment.
Finally, she disputes the district court’s grant of summary judgment based
on complaints of rudeness received against her, which the district court ruled
plaintiff could not demonstrate were gender related. In her brief, plaintiff
contends that the working termination based on rudeness complaints constituted a
“tangible employment action.” Aplt. App. at 15. This, of course, is beside the
point, as is plaintiff’s subsequent reference to other working terminations based
on rudeness complaints. See id. at 16. Plaintiff has totally failed to point to
anything in the record suggesting that she was subjected to disciplinary action for
rudeness complaints because of her gender.
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We conclude that plaintiff has failed to demonstrate a genuine issue of
material fact and that the district court’s grant of summary judgment for
defendant was proper.
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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