Dunlap v. Kansas, Department of Health & Environment , 127 F. App'x 433 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 1 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
ELKE DUNLAP,
Plaintiff-Appellant,
No. 02-3331
v.
(D.C. No. 00-CV-4185-RDR)
(D. Kan.)
STATE OF KANSAS, DEPARTMENT
OF HEALTH AND ENVIRONMENT,
Defendant-Appellee.
ORDER AND JUDGMENT*
Before HARTZ, HOLLOWAY and McKAY, Circuit Judges.
Plaintiff-appellant Elke Dunlap sued her employer, the State of Kansas Department
of Health and Environment, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e-2000e(16), alleging discrimination based on gender and national origin and unlawful
retaliation. The district judge granted the defendant’s motion for summary judgment, and
Dunlap now appeals.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
I
The facts, as viewed through the prism of the defendant’s summary judgment motion,
are set out in detail in the district court’s thorough opinion, 211 F. Supp. 2d 1334 (D. Kan.
2002), and we will present here only a summary. Plaintiff was born in 1944 in Germany and
lived there until she was 19 years old. She then married an American and moved to this
country in 1963. She still speaks with an accent. She is a naturalized citizen of the United
States. She has been employed by the Kansas Department of Health and Environment since
1992. In October 1997, she began working at a location called Forbes Field in the Office of
Information Systems.
In the spring of 1998, she was placed under the supervision of Phil Breedlove, and
most of her allegations come from that time. Plaintiff testified that she often overheard
Breedlove make fun of female employees who spoke with accents. Breedlove would gather
with other men after teaching a computer class and use a Spanish accent to mock questions
that women had asked during the class. This would often occur close to plaintiff’s work
station where she could hear the conversation.
Plaintiff said that after trying to ignore this for awhile, she asked Breedlove to stop
it. When that failed to stop the behavior, she approached Breedlove’s supervisor, Pam
Tierce. However, nothing was done and the practice continued until plaintiff’s desk was
moved away from where this was going on.
It is not clear how frequently this had occurred. Plaintiff testified that it would occur
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at least weekly and sometimes three times in a single day, depending on the number of
classes Breedlove had and the number of foreign born speakers in the classes. Breedlove
never attempted to mimic a German accent, nor did he make any remarks about persons of
German ancestry. Plaintiff did testify in deposition, however, that Breedlove would
sometimes pretend not to understand her accent in order to force her to repeat words that he
knew were difficult for her to pronounce.
In February 1999 plaintiff became involved in a “cowboy hat incident.” A former
high level employee who habitually wore a cowboy hat had retired. One day soon afterward,
Tierce and Breedlove saw a cowboy hat at plaintiff’s work station with a note on it saying
“RIP.” They interpreted this as a celebratory note. The suggested inference was that the
retired supervisor was not popular and other supervisors knew it.
Plaintiff was not at work that day (although the district court indicated that the hat
with the note had been at her station for some days by this time) and denied knowing
anything about the hat and note. Tierce immediately called and reported the “incident” to a
personnel officer. Plaintiff received a letter, which she now contends was a reprimand but
which defendant characterized as a letter of concern, from the Secretary of the Department.
The letter said that the display was “disrespectful” and had caused “undue disruption to the
workplace.” The letter was not placed in plaintiff’s personnel file.
Plaintiff contended that Breedlove knew that the hat did not belong to her and knew
that she was not at work that day. Therefore, she alleged, he had lied to implicate her in the
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incident. She also contended that she was disproportionately punished over it. The owner
of the cowboy hat, a male, and two American -born female receptionists, who in April 1999
had cowboy hats with RIP on them, were not reprimanded at all, Dunlap maintains.
On June 22, 1999, plaintiff Dunlap was delayed by traffic and was late returning from
lunch. She put a leave slip in Breedlove’s box as a result. She said that he became infuriated
about it, for unexplained reasons. However, he approved the leave, which was at his
discretion.
Plaintiff also alleged two instances of disparate treatment related to leave or
“rearranged time.” First, plaintiff testified that her request for leave to care for her seriously
ill husband was scrutinized more closely than the request of a male employee whose pet
ferret became mortally ill. Plaintiff testified that an American-born male was given two days
off either to care for his sick pet ferret or to grieve over the animal’s passing, without any
question. In contrast, when plaintiff’s husband was seriously ill and she requested leave to
care for him, she was questioned about the need for it.
The second incident occurred after Tierce became plaintiff’s direct supervisor instead
of Breedlove, and this incident involves “rearranged time.” Although we have not been
given a definition of this term, from the context it clearly seems to mean a flexibility in an
employee’s hours provided for the employee’s convenience. Thus, for example, an employee
who was an hour late for work because of a dental appointment could, we infer, make up the
time by staying one hour later than usual, avoiding the necessity of using accumulated leave
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for such a minor contingency. One day when Dunlap was late to work because of traffic, she
requested “rearranged time” but this was refused by Tierce. In contrast, males “got away
with anything they wanted to,” according to plaintiff’s testimony.
Plaintiff filed her first administrative complaint with the Kansas Human Rights
Commission on March 22, 1999. She complained about the mocking of females with accents
and that she had been harassed and discriminated against based on her gender and ancestry
with regard to the cowboy hat incident. Plaintiff contended in the district court that
Breedlove began retaliatory conduct after she filed the charge. She cited the leave slip
incident and also said that Breedlove began taking duties away from her. She alleged that
he drafted a job description for her that appeared designed to demote her from Office
Assistant IV to Office Assistant II. Breedlove made about five requests to have her removed
from his supervision.
Plaintiff filed an amended administrative charge on August 19, 1999, adding two
instances of allegedly discriminatory treatment based on gender and ancestry. The first of
these two alleged discriminatory acts is not discussed on appeal. The second was the June
22nd incident described supra.
Plaintiff allegedly suffered severe mental distress with accompanying physical
symptoms. These include anxiety attacks, depressions, headaches, crying spells, vomiting,
shaking and other symptoms. She could not pinpoint the onset of her ailments but said that
it got “out of hand” after she received the letter of reprimand about the cowboy hat.
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II
Ms. Dunlap first argues that the district court erred in determining that defendant was
entitled to judgment as a matter of law on her claim of a hostile work environment. In
evaluating a discrimination claim based on an allegedly hostile work environment, a court
must inquire whether “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 . . .’” Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993) (internal brackets and quotation marks omitted). Further, we
also examine whether the harassment was based on a protected characteristic. Thus we
inquire whether the alleged harassment was based on Ms. Dunlap’s gender or national origin.
See Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994) (“General harassment if not racial
or sexual is not actionable.”).
The district judge concluded that the incidents where Breedlove would pretend not to
understand Dunlap’s accent were the only ones that were based on her national origin or her
gender. We agree with the district court that these incidents were insufficient to show an
atmosphere of severe or pervasive bias.
Incidents which the judge found not probative of forbidden bias included the handling
of the cowboy hat incident, the leave slip incident, and Breedlove’s reduction of plaintiff’s
duties. These, the judge found, and we agree, do not appear related to Ms. Dunlap’s gender
or national origin. (Although we return to some of these incidents infra in discussing
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plaintiff’s claim of disparate treatment.) The district judge also found that the repeated
instances of Breedlove mocking other females with Spanish accents were not gender based.
This observation is dubious.
Nevertheless, we agree with the district court that plaintiff’s evidence fell short of
showing that the offensive conduct was severe or pervasive enough to constitute a hostile
environment. We note that in spite of the observation that most of the incidents cited by
plaintiff to support her claim were not targeted at her because of her ancestry or gender, the
district judge did not ignore the evidence but considered it carefully. In particular, the judge
took another look at the evidence of Breedlove’s mocking of his female students who had
Spanish accents. The judge did not reject this evidence out of hand but observed that “in an
appropriate case mimicking of accents could serve as indirect evidence of discrimination .
. . .” 211 F. Supp. 2d at 1341. But in this case, the judge went on, because the accents being
mocked were not similar to plaintiff’s, and because that conduct was not aimed at her (but
merely overheard by her), “the causal link is simply too weak to give rise to an inference that
plaintiff’s German ancestry or gender was somehow being targeted.” Id. We agree with this
analysis.
In sum, plaintiff’s evidence was insufficient to show that she was subjected to a work
environment of severe or pervasive hostility, and some of the meager evidence she proffered
was of questionable relevance because it did not show a connection to her gender or national
origin.
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III
On plaintiff’s disparate treatment claim, the district judge acknowledged that our
circuit has a liberal standard as to what constitutes an adverse employment action, but
concluded that plaintiff failed to meet even this low threshold.1 The letter of concern or of
reprimand was not enough, the judge found. On that point, the judge cited Krause v. City of
La Crosse, 246 F.3d 995, 1000 (7th Cir. 2001), which held that a reprimand alone is not
enough but must be accompanied by a demotion or some other job action. The judge also
noted that a similar conclusion had been reached in Robleado v. Deffenbaugh Indus., Inc.,
136 F. Supp. 2d 1179 (D. Kan. 2001), aff’d, 33 Fed. Appx. 480 (10th Cir. 2002). He found
these authorities persuasive and held that because there were no other consequences and the
letter was not put in plaintiff’s personnel file, the letter did not constitute adverse
employment action.
The judge found that the allegations of disparate treatment based on denial of
plaintiff’s requests for leave time and rearranged time failed for the same reason. Being
questioned about leave requests and having one request for rearranged time denied are too
1
To establish a prima facie case of disparate treatment in violation of Title VII in
the circumstances of this case, Ms. Dunlap was required to show that she is a member of
a protected class by virtue of being female and of German national origin; that she was
subjected to an adverse employment action; and that employees who were not members of
the protected class or classes were treated more favorably. See, e.g., Cole v. Ruidoso
Mun. Schools, 43 F.3d 1373, 1380 (10th Cir. 1994). The elements of the prima facie case
are flexible, depending on the circumstances of the case. See EEOC v. Horizon/CMS
Healthcare Corp., 220 F.3d 1184, 1192-95 & nn.6-7 (10th Cir. 2000).
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trivial, he found, noting that other courts have held that transfer and scheduling decisions of
more significance than these were insufficient. He cited among other cases Amro v. Boeing
Co., 232 F.3d 790, 797 (10th Cir. 2000).
As the district judge noted, we liberally define the phrase “adverse employment
action.” See, e.g., Hillig v. Rumsfeld, 381 F.3d 1028, 1031 (10th Cir. 2004). As we have
applied the term, adverse employment actions “are not simply limited to monetary losses in
the form of wages or benefits. Instead, we take a case-by-case approach, examining the
unique factors relevant to the situation at hand.” Id. (quoting Sanchez v. Denver Public
Schools,, 164 F.3d 527, 532 (10th Cir. 1998)). However, “a mere inconvenience or an
alteration of job responsibilities,” does not satisfy even our liberal standard. Sanchez, 164
F.3d at 532.
We think it quite clear that being questioned about a request for leave is, at least in the
circumstances of this case, “a mere inconvenience” that does not constitute an adverse
employment action. The same is true for the plaintiff having had to use a trivial amount of
leave time on the one occasion that she was denied the convenience of “rearranged time.”
The letter of concern is not quite so easily dismissed as a trivial inconvenience. But
with our focus on the specifics of this case, and particularly in view of two circumstances –
that the letter was not made a part of plaintiff’s personnel file and that no allegation (much
less showing) is made of adverse consequences following from the incident – we agree with
the district judge that this did not constitute an adverse employment action.
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IV
The final issue on appeal is whether the district court erred in concluding that
plaintiff’s retaliation claim was barred by her failure to exhaust administrative remedies.2
We affirm the district court’s ruling although we reach our conclusion on different reasoning,
basing our holding on National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
As we have previously noted, that case “has effected fundamental changes to the doctrine
allowing administratively unexhausted claims in Title VII actions.” Martinez v. Potter, 347
F.3d 1208, 1210 (10th Cir. 2003). Plaintiff’s argument in this case is based on our pre-
Morgan case law which recognized a “narrow exception” to the exhaustion requirement –
permitting a claim for incidents not listed in the original administrative charge to be included
in the lawsuit if the incidents are “like or reasonably related to the allegations” of the
administrative charge. See Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 799 (10th Cir.
1997). We had also held that “an act committed by an employer in retaliation for filing of
an EEOC complaint is reasonably related to that complaint, obviating the need for a second
EEOC complaint.” Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994).
2
As noted by the district court, the alleged retaliatory conduct consisted of the
incident mentioned supra in which Breedlove became angered about plaintiff’s
submission of a leave slip; Breedlove’s reduction of plaintiff’s responsibilities;
Breedlove’s attempt to “silently demote” plaintiff by preparation of a job description
reflecting reduced duties; and Breedlove’s requests to have plaintiff placed under another
supervisor. 211 F. Supp. 2d at 1339. We express no opinion on the merits of these
contentions.
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As we noted in Martinez: “Morgan abrogates the continuing violation doctrine as
previously applied to claims of discriminatory or retaliatory actions by employers, and
replaces it with the teaching that each discrete incident of such treatment constitutes its own
‘unlawful employment practice’ for which administrative remedies must be exhausted.” 347
F.3d at 1210.3
Plaintiff’s argument is simply untenable in the wake of Morgan. The incidents which
she alleges to have been retaliatory conduct by the employer are discrete incidents of
allegedly unlawful employment practices and subject to the requirement of administrative
exhaustion, unrelieved by our prior doctrine which excused the exhaustion requirement for
acts reasonably related to the acts included in the administrative charge. The judgment is
AFFIRMED.
ENTERED FOR THE COURT
William J. Holloway, Jr.
Circuit Judge
3
We note that the district judge did not have the benefit of Martinez when he
issued his opinion.
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