Unal v. Los Alamos Public Schools

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 29, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ZEYNEP UNAL,
Plaintiff - Appellant,
v. No. 15-2055
(D.C. No. 1:13-CV-00367-LAM-WPL)
LOS ALAMOS PUBLIC SCHOOLS; LOS (D. N.M.)
ALAMOS PUBLIC SCHOOLS SCHOOL
BOARD; EUGENE SCHMITT and
KATHRYN VANDENKIEBOOM, in their
individual capacities,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
_________________________________
I. INTRODUCTION
Zeynep Unal, an elementary school teacher in the Los Alamos Public School
District (LAPS), brought suit against LAPS, its Superintendent, and the principal of
the elementary school where she worked (collectively, Defendants) alleging various
claims of national-origin discrimination and retaliation, in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 1981, the Equal Protection Clause of the
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value. Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Fourteenth Amendment to the U.S. Constitution, and the New Mexico Human Rights
Act. The district court granted summary judgment in favor of Defendants on all
claims. On appeal, Ms. Unal argues she presented sufficient evidence at summary
judgment to send her hostile-work-environment and retaliation claims to a jury.
Exercising jurisdiction under 28 U.S.C. § 1291, we reverse in part and affirm in part.
II. BACKGROUND
A. Factual History
Because this matter comes to us on appeal from a grant of summary judgment
for Defendants, we present the facts in the light most favorable to the nonmoving
party, Ms. Unal. Eisenhour v. Weber Cty., 744 F.3d 1220, 1226 (10th Cir. 2014).
Ms. Unal, a Turkish-born Muslim woman who speaks with a distinct Turkish accent,
has worked for LAPS as an elementary teacher in the district’s Gifted and Talented
Education (GATE) program since 2004. In 2006, she began working at Aspen
Elementary School. In 2008, LAPS hired Katheryn Vandenkieboom as the principal
of Aspen Elementary School. As principal, Ms. Vandenkieboom was Ms. Unal’s
supervisor from 2008 to 2012.
Ms. Unal alleges that during her time working under Ms. Vandenkieboom’s
supervision, the school had a culture of racial and ethnic insensitivity and
Ms. Vandenkieboom made, encouraged, or acquiesced in various hostile comments.
Some of these insensitive comments were directed at Ms. Unal. For example, while
eating lunch in the faculty lounge one day, Ms. Vandenkieboom and others began
discussing an American movie. Ms. Vandenkieboom, in front of the staff, told
2
Ms. Unal “You wouldn’t know about this. You are not from here.” On another
occasion during an after-school Christmas concert in which Ms. Unal’s own child
was participating, Ms. Vandenkieboom thanked various teachers for their attendance
at the concert but approached Ms. Unal and asked, “what are you doing here?” Ms.
Vandenkieboom would also condescendingly correct Ms. Unal’s pronunciation in
front of staff. And another staff member once called Ms. Unal “a turkey from
Turkey,” although the staff member later apologized.
Beyond the comments made directly to Ms. Unal, Ms. Vandenkieboom and her
staff made insensitive remarks about other nationalities. Ms. Vandenkieboom
repeatedly referred to a Vietnamese family as the “little people,” and staff members
joked openly about an Asian family’s surname, Fu, equating it with a crude insult,
“F.U.” The school’s office staff would also make announcements over the school’s
intercom system in feigned foreign accents and laugh about it.1 Ms. Unal was not the
only faculty member to notice this insensitive conduct. On January 7, 2012, Sherry
Sanchez, the school’s speech therapist, wrote an email to Ms. Unal summarizing
discriminatory conduct she had observed at the school.
1
Ms. Unal also relies on evidence showing Ms. Vandenkieboom told a group
of staff members that she wished certain Hispanic and Native American students who
left an offensive message on the school’s voicemail “would all die” and that they
“don’t deserve the dirt they walk on.” But Ms. Unal failed to demonstrate that, in
making these comments, Ms. Vandenkieboom was motivated by national-origin or
racial animus toward the students, rather than offense based on the content of their
message. In addition, there was no evidence presented that Ms. Unal was aware of
these comments during the time she was allegedly subject to a hostile work
environment. We therefore do not consider them.
3
Ms. Unal, who was the only foreign-born teacher at Aspen Elementary, also
alleges she was subjected to disparate treatment because of her national origin. For
instance, prior to Ms. Vandenkieboom’s arrival, Ms. Unal was considered a good
teacher and regularly received positive reviews; however, once Ms. Vandenkieboom
became principal, Ms. Unal’s coworkers observed that this changed. They noticed
that Ms. Vandenkieboom treated Ms. Unal as if she “didn’t really know what she was
doing.” Ms. Unal also observed that Ms. Vandenkieboom would not make eye
contact with her. On one occasion, Ms. Unal informed Ms. Vandenkieboom it was
against state regulations to require Ms. Unal to grade the GATE students and to insist
she also teach regular education classes. Ms. Vandenkieboom did not believe
Ms. Unal until a LAPS administrator confirmed that Ms. Vandenkieboom’s requests
were contrary to state regulations.
Ms. Vandenkieboom also excluded Ms. Unal from certain work-related
communications in which Ms. Unal had previously participated. For example, early
in Ms. Vandenkieboom’s tenure as principal of Aspen Elementary, she sent an email
to all the teachers except Ms. Unal requesting feedback on the GATE program and
also held a GATE meeting to which she did not invite Ms. Unal. But
Ms. Vandenkieboom did not exclude other teachers from communications regarding
their specialized programs. Ms. Vandenkieboom also established disparate
expectations for faculty attendance at meetings scheduled to discuss students who
had Individualized Education Plans (IEP). Although Ms. Vandenkieboom routinely
4
excused teachers from attending meetings to discuss Ms. Unal’s IEP students, she
made no such exceptions for attendance at other teachers’ IEP meetings.
Ms. Vandenkieboom was also uncharacteristically slow in responding to
Ms. Unal’s professional needs. During the 2010–2011 school year, for example,
Ms. Vandenkieboom assigned Ms. Unal a class size of over fifty students—nearly
double the size permitted under state law. Although Ms. Unal “accepted” the large
class size, she anticipated, per school policy, that she would receive a permanent
instructional assistant. Instead, Ms. Unal received “sporadic[]” support from
instructional assistants assigned to other teachers at the school.
In contrast, when another teacher received an influx of students later that same
school year, Ms. Vandenkieboom resolved her instructional-assistant needs within
one week. Even after the school’s Coordinator for Student Services informed Ms.
Vandenkieboom of the need to assign Ms. Unal an instructional assistant, several
months passed before Ms. Vandenkieboom complied. After Ms. Unal was finally
assigned her own instructional assistant, the assistant praised Ms. Unal’s ability to
give each student individualized attention, despite having to manage such a large
workload.
Ms. Vandenkieboom also solicited performance information and negative
feedback about Ms. Unal, but did not seek criticism about other teachers.
Specifically, Ms. Vandenkieboom questioned the school’s speech therapist,
Ms. Sanchez, about Ms. Unal’s performance, but did not question Ms. Sanchez about
the performance of any other teachers. According to Ms. Sanchez, Ms.
5
Vandenkieboom stated, “I’m going to get [Ms. Unal].” Ms. Vandenkieboom likewise
solicited negative feedback about Ms. Unal from a substitute teacher. Yet she did not
ask substitutes about the performance of other teachers.2 Although the substitute
teacher gave no negative feedback, on a separate occasion, three teachers who were
considered close friends of Ms. Vandenkieboom complained that Ms. Unal failed to
provide them with GATE student progress reports, even though no policy existed
requiring GATE teachers to provide non-GATE teachers with such information.
Based on this negative feedback, Ms. Vandenkieboom verbally counseled Ms. Unal.
Shortly thereafter, Ms. Unal reported what she perceived as discriminatory
conduct. In the spring of the 2010–2011 school year, Ms. Unal wrote a letter to the
Assistant Superintendent, Paula Dean. In the letter, Ms. Unal expressed her belief
that Ms. Vandenkieboom was biased against her and that Ms. Vandenkieboom
seemed to have a problem with Ms. Unal’s culturally different background. Four days
2
Ms. Unal also points to a letter from her instructional assistant indicating that
Ms. Vandenkieboom asked the instructional assistant how Ms. Unal was treating her,
“in a manner that implied [the assistant] should say negative things to curry favor
with” Ms. Vandenkieboom. Defendants contend the letter is inadmissible hearsay and
therefore insufficient to defeat summary judgment. Although the nonmoving party at
summary judgment need not “produce evidence in a form that would be admissible at
trial,” Celotex Corp. v. Catrett, 477 U.S. 317, 324, she must nonetheless demonstrate
that the content of the evidence could be presented in an admissible form at trial,
Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.
2006); 11 JAMES WM. MOORE ET AL., Moore’s Federal Practice - Civil § 56.91 (3d
ed. 2015) (“The requirement is that the party submitting the evidence show that it
will be possible to put the information, the substance or content of the evidence, into
an admissible form.”). Here, Ms. Unal has failed to do so. We therefore do not
consider the hearsay statements of the instructional assistant contained in the letter.
6
after Ms. Unal sent this letter, Ms. Vandenkieboom issued Ms. Unal three
disciplinary letters, which covered the same topics she had discussed during the
earlier verbal counseling. Ms. Unal then submitted a formal grievance to the district
contesting the disciplinary letters. In response, LAPS administration held a meeting
involving Ms. Unal, the Human Resource Coordinator, Ms. Vandenkieboom, and
Ms. Unal’s union representative. Ms. Unal requested that the disciplinary letters be
removed from her file and that she be assigned a new supervisor. During the meeting,
the LAPS representatives indicated that Ms. Unal’s demands would be met.
Just days later, in the middle of class, Ms. Vandenkieboom, the Human
Resource Coordinator, and Assistant Superintendent Dean entered Ms. Unal’s class
unannounced, pulled Ms. Unal out of the classroom, and told her that
Ms. Vandenkieboom would remain her supervisor and that the school was moving
her class from the building to an outside portable classroom, effective immediately.
This incident happened within a month of the end of the school year. Neither Ms.
Vandenkieboom nor LAPS provided an explanation for the move.
During this same timeframe, Ms. Unal began suffering from panic attacks. Her
health continued to deteriorate and in July 2011, she had a panic attack shortly after
exercising that caused her to faint, hit her head, and suffer a concussion. Ms. Unal
sought medical attention, and the doctor cited the “extraordinary stress from” work,
her mother’s poor health, and marital problems as potential causes of the panic
attacks. The doctor prescribed her antidepressants. Ms. Unal then applied for and
received medical leave, which she remained on for the duration of the 2011–2012
7
school year. On January 13, 2012, while she was on leave, Ms. Unal filed a charge of
discrimination against Defendants with the Equal Employment Opportunity
Commission (EEOC). The EEOC eventually granted Ms. Unal a right-to-sue letter.
Several months later, in accordance with Ms. Unal’s teaching contract, LAPS
sent her a notice of intent to rehire for the 2012–2013 school year. Per the terms of
the notice, Ms. Unal was required to return the signed notice within fifteen days to
renew her contract. The notice was dated May 7, 2012. Ms. Unal received the notice
on May 19, 2012, and hand delivered the signed notice on May 23, 2012. Despite
Ms. Unal having returned the notice within fifteen days of receiving it, LAPS
attorneys did not initially accept the notice, thereby effectively terminating Ms. Unal.
After Ms. Unal’s attorneys became involved, however, LAPS conceded that Ms.
Unal’s response was timely and rescinded the termination. Ms. Unal entered a
contract with LAPS to teach at a different elementary school for the 2012–2013
school year.
B. Procedural History
Ms. Unal filed this lawsuit against LAPS, Superintendent Eugene Schmidt, and
Ms. Vandenkieboom alleging, among other things, hostile work environment and
retaliation in violation of Title VII, 42 U.S.C. § 1981, the Equal Protection Clause to
Fourteenth Amendment, and the New Mexico Human Rights Act. Ms. Unal alleged
three separate instances of retaliation: (1) Ms. Vandenkieboom’s issuance of three
disciplinary letters shortly after Ms. Unal sent a letter to the district complaining of
discrimination; (2) Ms. Vandenkieboom and Assistant Superintendent Dean’s
8
conduct in entering her classroom unannounced, reneging their commitment to assign
Ms. Unal a new supervisor, and ordering her class to relocate to a portable trailer
shortly after she filed her formal grievance; and (3) the district’s initial decision to
terminate Ms. Unal for allegedly failing to timely respond to the notice of intent to
rehire. Defendants moved for summary judgment on all counts, and the district court
granted the motion in whole.
Regarding the hostile-work-environment claim, the district court reasoned the
evidence failed to show Ms. Vandenkieboom’s and her staff’s conduct was
sufficiently severe or pervasive to support a claim for hostile work environment. As
to the retaliation claims, the district court rejected each on separate grounds. It
concluded (1) Ms. Unal failed to demonstrate Ms. Vandenkieboom knew of Ms.
Unal’s letter to the district at the time she issued the disciplinary letters, (2) the
relocation of Ms. Unal’s class to the portable classroom outside the building did not
constitute a materially adverse employment action, and (3) no causal connection
existed between Ms. Unal’s EEOC action and LAPS’s initial decision to terminate
her. This appeal followed.
III. DISCUSSION
We review de novo the district court’s grant of summary judgment on
Ms. Unal’s hostile-work-environment and retaliation claims, applying the same
standard as the district court. Bertsch v. Overstock.com, 684 F.3d 1023, 1027 (10th
Cir. 2012). We view the evidence and all reasonable inferences to be drawn from it in
the light most favorable to the nonmoving party. Id. Viewing the evidence this way,
9
summary judgment is appropriate if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “An issue is ‘genuine’ if there is sufficient evidence on
each side so that a rational trier of fact could resolve the issue either way, and an
issue of fact is ‘material’ if under the substantive law it is essential to the proper
disposition of the claim.” Lounds v. Lincare, Inc., --- F.3d. ---, No. 14-3158, 2015
WL 9299074, at *9 (10th Cir. 2015) (brackets and internal quotation marks omitted).
Because of their fact-intensive nature, employment-discrimination claims are not
well suited for summary judgment and should “go to the jury so long as the evidence
is sufficient to allow the jury to disbelieve the employer’s explanation for the alleged
misconduct.” Id. (brackets and internal quotation marks omitted). Applying this
standard to Ms. Unal’s claims of hostile work environment and retaliation, we
conclude the district court erred in granting summary judgment on Ms. Unal’s
hostile-work-environment claim, but we affirm summary judgment in favor of
Defendants on her retaliation claims.
A. Hostile Work Environment
Under Title VII of the Civil Rights Act of 1964, an employer may not
“discriminate against any individual with respect to his [or her] compensation, terms,
conditions, or privileges of employment, because of such individual’s race . . . or
national origin.” 42 U.S.C. § 2000e-2(a)(1). An employer violates Title VII when it
allows “a hostile work environment based on race or national origin discrimination.”
Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 957 (10th Cir. 2012) (internal
10
quotation marks omitted). Title VII is not a “general civility code,” id.; therefore, to
avoid summary judgment on a hostile work 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.” Id. at 958 (internal quotation marks omitted).
To carry her prima facie burden under the hostile-work-environment
framework, Ms. Unal must show “(1) she is a member of a protected group; (2) she
was subject to unwelcome harassment; (3) the harassment was based on [national
origin]; and (4) due to the harassment’s severity or pervasiveness, the harassment
altered a term, condition, or privilege of [her] employment and created an abusive
working environment.” Lounds, 2015 WL 9299074, at *11 (brackets and internal
quotation marks omitted).
The parties here agree that Ms. Unal is a member of a protected group based
on her national origin and that she was subject to some unwelcome harassment. The
parties dispute, however, whether the harassment was based on Ms. Unal’s national
origin and whether it was sufficiently severe or pervasive to demonstrate a hostile
work environment. Our analysis therefore proceeds by assessing whether Ms. Unal’s
evidence raises a genuine dispute as to these two elements of a hostile-work-
environment claim. We conclude that it does.
11
1. National-Origin-Based Harassment
To survive summary judgment on a claim of national-origin-based hostile
work environment, a plaintiff must show harassment stemming from animus toward
her national origin. Hernandez, 684 F.3d at 960. Although evidence of animus
directed at a plaintiff’s particular nationality provides the strongest evidence of a
hostile work environment, “evidence of a general work atmosphere, including
evidence of harassment of other [nationalities], may be considered in evaluating a
claim, as long as [plaintiff] presents evidence that [s]he knew about the offending
behavior.” Tademy v. Union Pac. Corp., 614 F.3d 1132, 1146 (10th Cir. 2008)
(internal quotation marks omitted); see also Hernandez, 684 F.3d at 959
(“[D]erogatory comments need not be directed at or intended to be received by the
victim to be evidence of a hostile work environment.”). Moreover, “facially neutral
abusive conduct can support a finding of [national-origin-based] animus sufficient to
sustain a hostile work environment claim when that conduct is viewed in the context
of other, overtly . . . discriminatory conduct.” Hernandez, 684 F.3d at 960 (brackets
and internal quotation marks omitted). Thus, courts evaluating a hostile-work-
environment claim must avoid viewing individual instances of hostility in isolation
but instead must look to the “totality of the circumstances.” Id. at 959 (internal
quotation marks omitted); see also McCowan v. All Star Maint., Inc., 273 F.3d 917,
925 (10th Cir. 2001) (“[W]hen we examine the context of this Title VII claim, we
look at both specific hostility targeting Plaintiffs as well as the general work
atmosphere.”).
12
In this case, Ms. Unal presents three categories of evidence that she contends
create a genuine issue of national-origin-based harassment: (1) comments or conduct
that were overtly based on her nationality, (2) hostile comments made about people
of other nationalities, and (3) facially-neutral conduct demonstrating she was treated
differently than her U.S.-born peers. As to the first category, Ms. Unal produced
evidence of three instances when Ms. Vandenkieboom and other staff members made
derogatory comments to Ms. Unal based on her nationality. On one occasion,
Ms. Vandenkieboom questioned why Ms. Unal would attend a school Christmas
concert, but thanked other teachers for their attendance, and on a separate occasion
Ms. Vandenkieboom excluded Ms. Unal from a conversation about an American
movie because Ms. Unal is “not from here.” Additionally, a different staff member
once called Ms. Unal a “turkey from Turkey.”
The district court concluded the only direct comment about Ms. Unal’s
nationality was the “turkey from Turkey” comment. But the district court failed to
consider the reasonable inference that Ms. Vandenkieboom’s comments, when taken
in context, were intended to emphasize negatively Ms. Unal’s status as a foreigner.3
And although Ms. Vandenkieboom’s comment at the Christmas concert could be
interpreted as demonstrating animus toward Ms. Unal based on her Muslim faith,
3
Excluding Ms. Unal from the discussion about the movie would do little,
standing alone, to advance her hostile work environment claim. But when combined
with the other two incidents, it provides some evidence that she was targeted based
on her national origin.
13
Turkey’s status as a predominantly Muslim country4 effectively intertwines Ms.
Unal’s religion and nationality. See Hassan v. City of New York, 804 F.3d 277, 303
(3d Cir. 2015) (“The history of religious discrimination in the United States is
intertwined with that based on other protected characteristics, including national
origin and race.”). Thus, a jury could reasonably infer from this comment that
Ms. Vandenkieboom harbored animus toward Ms. Unal because of her national
origin.
Second, Ms. Unal’s evidence of harassing comments directed at other
nationalities will support an inference of a national-origin-based hostile work
environment if Ms. Unal was present when they were made or otherwise became
aware of them “during the time that she was allegedly subject to a hostile work
environment.” Hirase-Doi v. U.S. W. Commc’ns, Inc., 61 F.3d 777, 782 (10th Cir.
1995); superseded on other grounds by Faragher v. City of Boca Raton, 524 U.S. 775(1998); accord Tademy, 614 F.3d at 1146. Ms. Unal knew of the following comments
or conduct directed at other nationalities: Ms. Vandenkieboom’s use of the term
“little people” to refer to a Vietnamese family; staff members’ use of feigned foreign
accents to make school-wide announcements while other staff members laughed at
this conduct; and an instance where some staff members mocked an Asian family
based on their surname Fu. There is no evidence, however, that Ms. Unal was aware
during the relevant time period that staff members had joked that the “valley people”
4
See Middle East: Turkey, CIA World Factbook (Dec. 10, 2015),
https://www.cia.gov/library/publications/the-world-factbook/geos/tu.html (listing
Turkey’s religious make-up as 99.8% Muslim, 0.2% other).
14
would steal from them during a power outage or that staff members had made other
racially discriminatory comments about Hispanic and Native American students.5
Therefore, we may not consider these comments in assessing the environment at
Aspen Elementary. Notwithstanding this limitation, we are convinced that the
comments directed at other nationalities of which Ms. Unal was aware support an
inference that the administration at Aspen Elementary maintained a culture of animus
towards foreign-born individuals.
Finally, Ms. Unal relies on several instances of facially neutral conduct that
she argues support an inference of hostility based on her national origin. In assessing
the totality of the evidence supporting a hostile-work-environment claim, “what is
important . . . is the environment, and [facially] neutral harassment makes up an
important part of the relevant work environment.” Hernandez, 684 F.3d at 960
(internal quotation marks omitted). Therefore, “when a plaintiff introduces evidence
of both [facially discriminatory] and [facially] neutral harassment, and when a jury,
viewing the evidence in context, reasonably could view all of the allegedly harassing
conduct as the product of [national-origin] hostility, then it is for the fact finder to
decide whether such an inference should be drawn.” Id. (ellipsis and internal
quotation marks omitted).
5
For instance, Ms. Unal relies on Ms. Vandenkieboom’s derogatory comments
about Hispanic students and Ms. Vandenkieboom’s decision to send the police to the
homes of Hispanic families who had not returned a waiver form. Although Ms. Unal
learned about these comments prior to the filing of her EEOC complaint, she did not
hear any of the comments directly, and she has not pointed to anything in the record
demonstrating that she was aware of these comments during the time period in which
she was allegedly subject to a hostile work environment.
15
In this case, Ms. Unal presented evidence of various facially neutral incidents
that a jury could view as products of national-origin hostility. The evidence shows
that Ms. Vandenkieboom (1) solicited negative feedback about Ms. Unal from a
substitute teacher, but did not do so with respect to other teachers; (2) discounted Ms.
Unal’s knowledge and expertise concerning the GATE program, as evidenced by her
failure to include Ms. Unal in GATE communications; (3) excused other teachers
from attending Ms. Unal’s IEP meetings but made no such exception for attendance
at other teachers’ IEP meetings; (4) let several months pass before assigning
Ms. Unal her own instructional assistant but immediately assigned an instructional
assistant to a U.S.-born teacher who accepted a large class size; (5) regularly
corrected Ms. Unal’s pronunciation in front of other staff members; and (6) entered
Ms. Unal’s classroom unannounced and, without explanation, required her to move
her class to a portable classroom.
These seemingly neutral incidents “cannot simply be discarded” because they
were not discriminatory on their face. Id. (internal quotation marks omitted). Instead,
we must view them in relation to the totality of the circumstances because they “must
be weighed on the side of reasonable inferences.” Id. (internal quotation marks
omitted). The relevant circumstances here include Ms. Unal’s status as the school’s
only foreign-born teacher, Ms. Vandenkieboom’s disparate treatment of other
teachers, and evidence showing a culture of animus towards individuals of different
national origin. Viewing all the evidence together, in context, a reasonable jury could
conclude that these facially neutral incidents were products of a larger environment
16
of hostility toward foreign-born individuals like Ms. Unal. We therefore conclude
that Ms. Unal presented sufficient evidence at summary judgment from which a
reasonable jury could conclude the harassment she experienced was based on her
national origin.
2. Severity or Pervasiveness
Next, we consider whether the harassment was sufficiently severe or pervasive
to have altered a term, condition, or privilege of Ms. Unal’s employment. “‘There is
not, and by its nature cannot be, a mathematically precise test’” for satisfying this
element of a hostile-work-environment claim. Hernandez, 684 F.3d at 957 (brackets
omitted) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)). Instead, we
look to the totality of the circumstances and consider various factors, including “the
frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Lounds, 2015 WL
9299074, at *11 (internal quotation marks omitted). In demonstrating these factors,
the plaintiff “must show more than a few isolated incidents” of enmity based on her
national origin. Id. (internal quotation marks omitted). Instead, the plaintiff must
demonstrate she was subject to a “steady barrage of opprobrious” conduct directed at
her because of her national origin. Id. (internal quotation marks omitted). Moreover,
a plaintiff must prove not only that she subjectively “deem[ed] the work environment
hostile,” but also that the environment was objectively hostile as viewed by “a
17
reasonable employee under the same or similar circumstances.” Id. (internal
quotation marks omitted).
“[P]ervasiveness and severity are independent and equal grounds upon which
a plaintiff may establish this element of a hostile environment claim.” Tademy, 614
F.3d at 1144 (internal quotation marks omitted). Indeed, as logic would suggest, the
two are often “inversely related” such that “a sufficiently severe episode may occur
as rarely as once, while a relentless pattern of lesser harassment that extends over a
long period of time” may also be sufficient to demonstrate a hostile work
environment. Id. (ellipsis and internal quotation marks omitted). Because of its
inherently fact-intensive nature “the severity and pervasiveness evaluation is
particularly unsuited for summary judgment.” Lounds, 2015 WL 9299074, at *11.
Here, Ms. Unal points to no single incident that was sufficiently severe to
satisfy this element of a hostile work environment on its own. Instead, she contends
that when looking to the cumulative effect of all relevant conduct—including the
overtly hostile conduct directed at her, the conduct directed at other nationalities, and
the facially neutral conduct—a reasonable jury could conclude she was subject to a
pervasive environment of hostility because of her status as a foreigner. Specifically,
Ms. Unal was the direct recipient of three harassing comments based on her national
origin; heard or became aware of insensitive comments made about Asian students
and people who speak with accents; and experienced numerous incidents of disparate
treatment that could reasonably be viewed as intended to isolate, disregard, or
undermine her because of her national origin.
18
Although we acknowledge the wide timespan during which this conduct took
place—from the fall of 2008 when Ms. Vandenkieboom became principal of Aspen
Elementary until the summer of 2011 when Ms. Unal took a leave of absence—we
are persuaded that the harassing conduct occurred with enough frequency that a
reasonable jury could conclude Ms. Unal experienced a pervasively hostile work
environment. Moreover, a reasonable jury could find this conduct was both
objectively and subjectively hostile. The harassing conduct remained persistent
throughout the time Ms. Unal worked under Ms. Vandenkieboom’s supervision such
that a reasonable person in Ms. Unal’s position could deem it hostile. The conduct
also motivated Ms. Unal to file a formal grievance, request a new supervisor, take a
leave of absence, and relocate to a new school. Ms. Unal’s work environment was
also at least one contributing factor in the onset of her panic attacks. When viewed in
the light most favorable to Ms. Unal, this evidence demonstrates she subjectively felt
a “steady barrage” of harassing conduct.
Although this is a close case, viewing Ms. Unal’s allegations in context and
considering the totality of the circumstances, we conclude her hostile work
environment claim should have survived summary judgment. The district court
deemed the “turkey from Turkey” comment the only overtly national-origin-based
comment made directly to Ms. Unal. But as explained above, we are persuaded
Ms. Unal presented evidence of at least two other comments that could reasonably be
viewed as demonstrating direct hostility toward her based on her national origin.
These are Ms. Vandenkieboom’s inquiry as to why Ms. Unal was at the Christmas
19
concert and her comment that Ms. Unal is “not from here” and would therefore not
understand an American movie.
The district court also concluded the remaining culturally insensitive
comments were only obscurely racial and were not directed at Ms. Unal. Although
we agree with the district court that many of these derogatory comments were
directed at other individuals and nationalities, as we explained above, such evidence
“may be considered in evaluating a [hostile-work-environment] claim.” Tademy, 614
F.3d at 1146. Ms. Unal offered evidence from which a reasonable jury could find that
Ms. Vandenkieboom participated in and encouraged xenophobia in the workplace.
Finally, the district court paid little heed to Ms. Unal’s evidence of facially
neutral conduct, disregarding this evidence because Ms. Unal did not demonstrate
sufficient opposition to the conduct. But Ms. Unal presented evidence showing she
opposed Ms. Vandenkieboom’s conduct by writing a letter to district administrators
and filing a formal grievance. Moreover, when viewed in the context of the other
evidence of hostility, a reasonable inference drawn from Ms. Vandenkieboom’s
facially neutral but disparate treatment of Ms. Unal is that Ms. Vandenkieboom was
motivated by national-origin-based animus toward Ms. Unal.
Unlike the district court, we are not persuaded that our decision in Anderson
v. Clovis Mun. Sch., 265 F. App’x 699 (10th Cir. 2008), dictates a different result.
Not only is Anderson nonprecedential, 10th. Cir. R. 32.1, it is distinguishable. In that
case, we affirmed summary judgment in favor of the defendants on a school teacher’s
hostile-work-environment claim. Id. at 707. Although the plaintiff in Anderson, a
20
minority school teacher, presented some evidence similar to that which Ms. Unal has
presented here—namely, that his principal subjected him to greater scrutiny,
degraded him in front of other teachers, and required him to teach a heavier load than
other teachers—the plaintiff in that case “failed to produce any evidence tending to
show that anyone at [the school] harbored racial animus toward him.” Id. In contrast,
Ms. Unal has presented evidence of comments Ms. Vandenkieboom and a staff
member made demonstrating animus toward Ms. Unal based on her national origin.
Ms. Unal has also produced evidence showing Aspen Elementary’s pervasive culture
of hostility and insensitivity towards foreign-born individuals generally. Therefore,
unlike the plaintiff in Anderson, Ms. Unal has produced evidence supporting a
reasonable inference that Ms. Vandenkieboom and others harbored animus based on
Ms. Unal’s national origin.
In sum, a reasonably jury could conclude Ms. Unal was subject to unwelcome
harassment based on her national origin and the pervasiveness of the harassment
altered a term, condition, or privilege of her employment, thus creating an abusive
work environment. Consequently, we reverse the district court’s grant of summary
judgment in favor of the Defendants on this issue.
B. Retaliation
We turn now to Ms. Unal’s retaliation claims, which she raises under Title
VII, 42 U.S.C. § 2000e-3(a); 42 U.S.C. § 1981; the Equal Protection Clause of the
Fourteenth Amendment; and the New Mexico Human Rights Act, N.M. Stat. Ann. §
28-1-7. But the Equal Protection Clause is not generally a suitable vehicle for raising
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a retaliation claim. See Teigen v. Renfrow, 511 F.3d 1072, 1086 (10th Cir. 2007)
(“The mere illegality of a retaliatory action under a separate body of law does not
make the resulting classification so illegitimate, irrational, or arbitrary as to violate
the Equal Protection Clause.”) We therefore assess Ms. Unal’s retaliation claim under
the three statutory provisions only.
Under each of these provisions, a plaintiff may prove retaliation either through
direct evidence “or by adhering to the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).” Davis v. Unified Sch. Dist. 500, 750
F.3d 1168, 1170 (10th Cir. 2014); see also Juneau v. Intel Corp., 127 P.3d 548, 551
(N.M. 2006) (“For a claim of unlawful discrimination [including retaliation], this
Court has used the methodology from McDonnell Douglas Corp. v. Green.”). Under
this framework, a plaintiff must first make a prima facie showing of retaliation by
proving, “(1) [s]he engaged in protected activity; (2) [s]he suffered an adverse
employment action; and (3) there is a causal connection between [her] protected
activity and the adverse employment action.” Davis, 750 F.3d at 1170; see also
Charles v. Regents of New Mexico State Univ., 256 P.3d 29, 33 (N.M. 2010) (“In
order to establish a claim of retaliation under the NMHRA, a plaintiff must
demonstrate that (1) she engaged in protected activity; (2) she suffered an adverse
employment action; and (3) there is a causal connection between these two events.”
(internal quotation marks omitted)).
If the plaintiff satisfies this burden, it is then the defendant’s responsibility to
“come forward with a legitimate, non-retaliatory rationale for the adverse
22
employment action.” Lounds v. Lincare, --- F.3d ---, 2015 WL 9299074, at *23
(ellipses and internal quotation marks omitted). If the defendant does so, the burden
then shifts back to the plaintiff to “show that the defendant’s proffered rationale is
pretextual.” Id. “An employee may demonstrate pretext by showing the employer’s
proffered reason was so inconsistent, implausible, incoherent, or contradictory that it
is unworthy of belief.” Stover v. Martinez, 382 F.3d 1064, 1071 (10th Cir. 2004).
Applying this framework to Ms. Unal’s three claims of retaliation, we
conclude the district court properly granted summary judgment on each claim.
1. Disciplinary Letters
Ms. Unal claims, first, that the three disciplinary letters Ms. Vandenkieboom
issued in the spring of 2011 were submitted in retaliation for Ms. Unal’s letter to
LAPS administration complaining of discrimination. The district court deemed
Ms. Unal’s letter to LAPS protected activity and Ms. Vandenkieboom’s disciplinary
letters an adverse employment action. But the district court granted summary
judgment on this claim because Ms. Unal failed to show a causal connection between
the protected activity and the disciplinary action. Specifically, the district court found
Ms. Unal had failed to come forward with any evidence that Ms. Vandenkieboom
was aware of the letter to LAPS when she issued the disciplinary letters. On appeal,
Defendants do not dispute that Ms. Unal has satisfied the protected-activity and
adverse-action prongs of her prima facie burden, but agree with the district court that
Ms. Unal failed to satisfy the causation prong.
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A plaintiff establishes a causal connection between her protected conduct and
the adverse employment action by proffering “evidence of circumstances that justify
an inference of retaliatory motive, such as protected conduct closely followed by
adverse action.” MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 1279 (10th Cir.
2005) (internal quotation marks omitted). Although evidence of “very close[]”
temporal proximity will provide compelling evidence of retaliation, and, in some
cases, may be sufficient on its own, Piercy v. Maketa, 480 F.3d 1192, 1198 (10th Cir.
2007), a plaintiff must also show that the person who engaged in the adverse
employment action was aware of the protected activity, Clark Cty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273 (2001) (per curiam) (noting that some cases “accept mere
temporal proximity between an employer’s knowledge of protected activity and an
adverse employment action as sufficient evidence of causality to establish a prima
facie case” (emphasis added)); Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188
(10th Cir. 2002) (“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.”).
Here, although Ms. Unal demonstrated temporal proximity of just four days
between the submission of her letter to LAPS administration and
Ms. Vandenkieboom’s issuance of the disciplinary letters, at summary judgment,
Ms. Unal failed to prove Ms. Vandenkieboom knew of the protected activity when
she issued the disciplinary letters. Instead, Ms. Unal argued that close temporal
proximity alone was enough to show causation. For the first time on appeal, Ms. Unal
24
has produced evidence she argues demonstrates Ms. Vandenkieboom was, in fact,
aware that Ms. Unal had sent LAPS administration a letter complaining of
discrimination when she issued the disciplinary letters. Specifically, Ms. Unal relies
on the deposition testimony of Assistant Superintendent Dean, which Ms. Unal
argues shows Ms. Dean spoke with Ms. Vandenkieboom about Ms. Unal’s letter to
LAPS before Ms. Vandenkieboom issued the disciplinary letters.
Regardless of whether Ms. Dean’s deposition testimony demonstrates
knowledge, Ms. Unal failed to present this evidence to the district court in her
opposition to summary judgment. Although Ms. Dean’s deposition testimony was
made part of the record in the district court, at summary judgment, Ms. Unal failed to
cite to the “particular parts” of the record that supported her causation argument. See
Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact . . . is genuinely disputed
must support the assertion by . . . citing to particular parts of materials in the record
. . .”). The district court was therefore under no obligation to parse through the record
to find the uncited materials. See id. 56(c)(3) (“The court need consider only the cited
materials.”). Because Ms. Unal’s summary judgment evidence did not demonstrate
the requisite knowledge, she failed to prove causation, and we must affirm the district
court’s grant of summary judgment to Defendants on this claim.
2. Relocation to Portable Classroom
Ms. Unal next argues she engaged in protected activity by filing a formal
grievance with the district and Defendants retaliated against her by barging into her
classroom unannounced, telling her Ms. Vandenkieboom would remain her
25
supervisor, and announcing her class would be immediately relocated to a portable
classroom outside the building. The district court agreed Ms. Unal’s formal grievance
was a protected activity and Ms. Unal had shown a causal nexus. But the court
concluded Defendants’ conduct did not constitute a materially adverse employment
action.
The Supreme Court in Burlington Northern & Santa Fe Ry. Co. v. White
defined a materially adverse action as one that might “dissuade[] a reasonable worker
from making or supporting a charge of discrimination.” 548 U.S. 53, 68 (2006). The
Court intentionally “phrase[d] the standard in general terms because the significance
of any given act of retaliation will often depend upon the particular circumstances.”
Id. at 69. The Court stressed the importance of context. Id. By way of example, the
Court explained that although a “change in an employee’s work schedule may make
little difference to many workers,” it could “matter enormously to a young mother
with school-age children.” Id. Likewise, “[a] supervisor’s refusal to invite an
employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by
excluding an employee from a weekly training lunch that contributes significantly to
the employee’s professional advancement might well deter a reasonable employee
from complaining about discrimination.” Id.Notwithstanding this context-specific approach, a plaintiff must nonetheless
demonstrate the adverse action was material. Id. at 69–70. The materiality
requirement reinforces the antiretaliation statutes’ focus on “prevent[ing] employer
interference with unfettered access to [the statutes’] remedial mechanisms,” and does
26
so by “prohibiting employer actions that are likely to deter victims of discrimination
from complaining to the EEOC, the courts, and their employers.” Id. at 68 (internal
quotation marks omitted). Thus, “petty slights, minor annoyances, and simple lack of
good manners” will generally not be material. Id.Returning to the facts before us, we consider whether a reasonable jury could
conclude that Defendants’ conduct in interrupting Ms. Unal’s classroom
unannounced, reneging on their commitment to provide her a new supervisor, and
ordering her to relocate to the portable classroom could deter a reasonable employee
from engaging in protected conduct. We have yet to address whether a workspace
relocation may support a retaliation claim in light of the relaxed adverse-action
standard set forth in Burlington Northern; at the very least the parties have not
directed us to such a case and our research has found none.6 We did, however,
confront such a situation in a case that predates Burlington Northern. In Stover v.
Martinez, we ruled that an employer’s decision to move plaintiff to an isolated office
6
We have, however, addressed whether an office relocation constituted a
materially adverse action in the context of a discrimination claim and concluded that
it did not. Nettle v. Cent. Okla. Am. Indian Health Council, Inc., 334 F. App’x 914,
926 (10th Cir. 2009). But because Burlington Northern did not alter the adverse-
action standard for discrimination claims, see Piercy v. Maketa, 480 F.3d 1192, 1203
(10th Cir. 2007) (explaining that although Burlington Northern relaxed the standard
for proving adverse action in the retaliation context, “it had no similar effect on our
discrimination jurisprudence”), Nettle provides little guidance for our decision in this
case. Indeed, unlike adverse actions in the retaliation context, which broadly include
all conduct that would deter a reasonable employee from engaging in protected
activities, adverse actions in the discrimination context are limited to actions “that
affect employment or alter the conditions of the workplace,” including “hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.” Id.27
did not constitute a materially adverse action for purposes of retaliation, even when
that conduct was aggregated with other negative actions, including plaintiff’s receipt
of low-level work and lower-than-normal employment reviews and defendant’s
failure to promote plaintiff or award her anticipated recognition. Stover, 382 F.3d at
1075.
Other circuits have addressed workspace relocations since Burlington
Northern, and most have ruled that such changes were not materially adverse in the
given context. See, e.g., Roncallo v. Sikorsky Aircraft, 447 F. App’x 243, 245–46 (2d
Cir. 2011) (“[A] temporary move from an office to a cubicle, consistent with
[defendant’s] office allocation policy . . . does not constitute a materially adverse
employment action.”); Fercello v. Cty. of Ramsey, 612 F.3d 1069, 1079 (8th Cir.
2010) (“[Plaintiff] has offered no evidence that the relocation of her office rendered
her unable to complete her duties or that it otherwise interfered with her employment
to an extent that would deter a reasonable person from making a harassment claim.”);
see also Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 473 (1st Cir. 2010) (ruling that
denial of request for better office space was not a materially adverse action because it
“left her in no worse a position than that held by similarly situated faculty
members”).
We acknowledge that in some cases, both pre- and post-Burlington Northern,
courts have held that a workspace relocation was materially adverse. See, e.g., Novak
v. England, 316 F. App’x 671, 673 (9th Cir. 2009) (reversing summary judgment
where there was “a genuine issue of material fact as to whether [plaintiff] suffered an
28
adverse employment action when he was . . . reassigned to perform menial work that
fell below his job classification and relocated to an isolated overflow area” (citation
omitted)); Signer v. Tuffey, 66 F. App’x 232, 236 (2d Cir. 2003) (concluding that
relocating plaintiff’s office to “an out-of-the-way office next to the building’s
garbage collection area,” together with evidence of a reduction in plaintiff’s work
responsibilities “was an adverse change in [plaintiff’s] employment conditions”);
Chuang v. Univ. of Cal. Davis, Bd. of Tr., 225 F.3d 1115, 1125 (9th Cir. 2000)
(ruling that “the relocation of [plaintiffs’] laboratory space unquestionably qualifies
as an adverse employment action” where the relocation disrupted plaintiffs’ research,
caused them to lose experimental subjects and grants, and resulted in broken
equipment). But in each of these cases, either the relocation itself or other adverse
conduct done in concert with the relocation negatively altered the employees’ work
conditions or interfered with their ability to complete employment duties.
In this case, Ms. Unal has failed to come forward with evidence showing her
relocation to the portable classroom had such a disruptive effect. Although
Defendants made the decision to move her classroom shortly before the end of the
school year, the record demonstrates that Ms. Unal did not, in fact, move until the
school year ended. Thus, the move did not interfere with her teaching
responsibilities. Ms. Unal has likewise failed to show that, apart from its location, the
portable classroom was in any way inferior to a regular classroom or that teaching in
the detached location would undermine her ability to perform her work duties. Nor
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has she shown that the move was contrary to school policy or that Defendants did not
similarly relocate other teachers.
Although Ms. Unal has demonstrated that Defendants announced their decision
to relocate her classroom in concert with other allegedly retaliatory conduct—i.e.,
entering her classroom unannounced and reneging on the agreement to assign her a
new supervisor—we are not convinced this conduct constituted anything more than
“petty slights, minor annoyances, and simple lack of good manners.” Burlington N.,
548 U.S. at 68; see A Soc’y Without A Name v. Virginia, 655 F.3d 342, 350 (4th Cir.
2011) (rejecting a retaliation claim based on a reneged promise because “retracting a
gratuitous promise does not amount to a discriminatory act or an adverse action”);
Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 332 (5th Cir. 2009) (concluding that
plaintiff’s reassignment to a new supervisor was not a materially adverse action
because “[h]er duties were unchanged, and there is no evidence that she suffered a
diminution in prestige or change in standing among her co-workers”). Because
Ms. Unal has not shown Defendants’ conduct would result in any negative
consequences beyond mere inconveniences, we cannot say this conduct would deter a
reasonable employee from engaging in protected activity. We therefore affirm the
district court’s grant of summary judgment on this claim.
3. Failure to Accept Ms. Unal’s Response to Notice of Intent to Rehire
Finally, Ms. Unal challenges the district court’s summary judgment on her
claim that Defendants retaliated against her for filing the EEOC charge of
discrimination by initially rejecting her response to the notice of intent to rehire. The
30
district court concluded that although Ms. Unal’s EEOC charge was a protected
activity and Defendants’ withdrawal of the offer to renew Ms. Unal’s teaching
contract was a materially adverse action, Ms. Unal failed to prove causation. Because
Ms. Unal filed her EEOC action six months before Defendants rejected her response
to the notice of intent to rehire, the district court ruled Ms. Unal could not rely on
temporal proximity alone to show causation. See Anderson v. Coors Brewing Co.,
181 F.3d 1171, 1179 (10th Cir. 1999) (“[U]nless the termination is very closely
connected in time to the protected activity, the plaintiff must rely on additional
evidence beyond temporal proximity to establish causation.”); Richmond v. ONEOK,
Inc., 120 F.3d 205, 209 (10th Cir. 1997) (ruling that a three month period is too long
to infer causation from temporal proximity). And because Ms. Unal provided no
other evidence of causation, the district court ruled she failed to satisfy her prima
facie burden as to this claim.
On appeal, Ms. Unal contends the clear discrepancy between the date reflected
on the notice of intent and the postmark date would have made it obvious to
Defendants that she timely responded to the notice. Thus, she reasons their timeliness
excuse is fabricated and demonstrates a causal connection. But even if the belated
postmark date is sufficient to show causation, Defendants have provided a
nonretaliatory justification for the adverse action, and Ms. Unal has not proven that
justification is mere pretext. Specifically, Defendants argue that when they made the
initial decision to reject Ms. Unal’s response, they determined the response was
untimely based solely on the date listed on the notice of intent to rehire itself and
31
were not aware it had been mailed days later. As soon as Ms. Unal informed
Defendants of the late postmark date, they rescinded the termination and renewed her
contract. Defendants thus argue that they did not fabricate the timeliness issue;
instead, they argue it was based on an honest mistake.
Ms. Unal has not produced evidence rebutting Defendants’ assertion that they
were unaware of the late postmark date; nor has she shown that Defendants’
proffered rationale was otherwise “so inconsistent, implausible, incoherent, or
contradictory that it is unworthy of belief.” Stover, 382 F.3d at 1071. Ms. Unal has
therefore failed to show that the decision to reject her acceptance letter was caused
by anything other than a clerical error. Accordingly, because Ms. Unal has not shown
Defendants’ justification was mere pretext, we affirm the district court’s grant of
summary judgment on this issue.
IV. CONCLUSION
For the reasons stated above, we REVERSE the district court’s grant of
summary judgment in favor of Defendants on Ms. Unal’s hostile-work-environment
claim, but we AFFIRM summary judgment on the retaliation claims.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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