Baugham v. Battered Women

N O T R EC O M M E N D E D FO R FU LL -T E XT PU BL IC A T IO N
File N am e: 06a0919n.06
Filed: D ecem ber 20, 2006
N o. 05-6051
U N IT E D ST A T E S C O U R T O F A PP E A L S
FO R T H E SIXT H C IR C U IT
JU N E B AU G H A M, SA RA H , )
D ERRICK, R ITA Y O U NG , )
PHY LLIS LEE, )
)
Plaintiffs-A ppellants, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) CO UR T FOR TH E M IDD LE
) DISTRICT O F TENNESSEE
)
BATTERED W OM EN, INC; )
BATTERED W OM EN, IN C., )
d/b/a AVALON CENTER, IN C., ) O PIN IO N
SH ARON M OORE, and )
PATTY B OA RDW INE, )
)
Defendants-Appellees. )
_______________________________)
B E FO R E : C L A Y , SILE R , and B A L D O C K , * C ircuit Judges.
B A L D O C K , C ircuit Judge. Plaintiffs June Baugham, Sarah Derrick, Rita
Young, and Phyllis Lee (collectively “Plaintiffs”) are former and present employees
of Defendant Battered W omen, Inc., d/b/a/ Avalon Center, Inc. (hereinafter
“Avalon”). They appeal the district court’s entry of summary judgment in favor of
Avalon on their claims for hostile w ork environment same-sex harassment,
*
The Honorable Bobby R. Baldock, United States Court of Appeals for the
Tenth Circuit, sitting by designation.
constructive discharge, and retaliation brought under Title V II of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. W e have jurisdiction pursuant to 28 U.S.C.
§ 1291, and affirm in part, vacate in part, and remand in part for further
consideration.
I.
In the summary judgment context, we ordinarily state the facts of the case in
the light most favorable to the non-moving party. See Tysinger v. Police Dept. of
City of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006). In this case, however, the
district court accepted as true Avalon’s statement of undisputed material facts after
the Plaintiffs failed to properly oppose those facts. See M iddle District of Tennessee
Local Rule 56.01. 1 Plaintiffs’ failure to comply with the district court’s local rule
resulted in a more defendant-friendly version of the facts. W e set forth the facts
which the district court accepted. W e view other facts from the record in the light
most favorable to Plaintiffs unless they are inconsistent with the facts Avalon
1
M iddle D istrict of Tennessee Local Rule 56.01 requires a plaintiff to
submit a response to a defendant’s statement of undisputed material facts either
admitting or denying those facts. W here a plaintiff disputes a fact by denying it,
the plaintiff must support the denial w ith “specific citation to the record.” In this
case, Plaintiffs opposed Avalon’s statement of undisputed facts with general
denials and without citation to the record. This falls short of the rule’s mandates.
In addition, Plaintiffs’ response was filed twenty-days late and without leave of
the court.
2
presented. See, e.g., Hoover v. Coca-Cola Co., 255 F. Supp. 2d 791, 792 n.1 (M .D .
Tenn. 2003).
Avalon is a non-profit organization that provides, among other things,
counseling, court advocacy, and shelter for victims or witnesses of domestic or
sexual violence in Cumberland County, Tennessee, as well as surrounding counties.
Avalon’s main office is in Crossville, Tennessee. In addition, Avalon has an office
in Dayton, Tennessee. During the time relevant to this case, Sharon M oore and Patty
Boardwine were involved in a romantic relationship. M oore was Avalon’s Executive
Director, and as such, responsible for overseeing the day-to-day operations,
programs, and fundraising of Avalon. M oore worked in the Crossville office. Patty
Boardwine was Avalon’s Program Director. Her responsibilities included overseeing
Avalon’s sexual assault program, including training of personnel and volunteers.
She too w orked in the Crossville office. M oore supervised Boardwine, Derrick,
Young, and Baugham. Boardw ine did not have supervisory authority over Plaintiffs.
Derrick worked for Avalon from approximately 1993 until her resignation on
January 21, 2003. At the time of her resignation, Derrick w orked as A valon’s
Service C oordinator in the Crossville office. Young worked as Avalon’s AIM
Coordinator from 1998 until she resigned on February 9, 2003. Young worked three
days a week, only one of which she spent in the Crossville office. The other tw o
days, Y oung w orked in the court building. At the time this appeal was taken,
3
Baugham and Lee remained employed w ith Avalon. Baugham w orks for Avalon as
a Program C oordinator in the D ayton office. Lee works as a V ictim Advocate in the
Dayton office. Baugham is Lee’s direct supervisor.
Avalon has a policy prohibiting harassment, discrimination, and retaliation.
If an employee wishes to report discriminatory conduct, the employee may file a
grievance. According to A valon’s policy, Avalon’s Executive D irector first
considers and investigates the grievance. If the Executive Director cannot resolve
the grievance, it is referred to the Personnel Committee of the Board of Directors.
The Personnel Committee reviews the grievance and conducts an investigation. The
decision of the Personnel Committee is final.
On December 9, 2002, Plaintiffs filed a grievance alleging they were subjected
to Boardwine’s offensive conduct and language. Despite finding Boardwine’s
behavior inappropriate and sexually harassing, Plaintiffs never complained to M oore
prior to filing their grievance. B ecause M oore felt implicated, she submitted
Plaintiffs’ grievance to M ark W hite, chairman of the Personnel Committee. M ark
W hite met with Plaintiffs, M oore, and Boardw ine on D ecember 17, 2002, to discuss
Plaintiffs’ grievance. Plaintiffs rejected W hite’s proposed resolution, so the
grievance was submitted to the full Personnel Committee. Avalon’s Personnel
Committee conducted a hearing. Plaintiffs conceded they had a full opportunity to
present their evidence of harassment to the Personnel Committee. On January 14,
4
2003, the Personnel Committee issued a written determination finding Boardwine did
not violate Avalon’s anti-harassment policy. Nevertheless, the Personnel Committee
recommended the staff participate in anti-harassment training. Since the grievance
was filed, neither Baugham nor Lee, the two Plaintiffs who did not resign following
the investigation, has observed B oardwine engage in any conduct they would
consider inappropriate or sexually harassing. And in fact, they have had m inimal
contact with Boardwine since Plaintiffs filed the grievance.
Shortly after Avalon’s P ersonnel Committee issued its decision, Derrick and
Young resigned from Avalon. Derrick resigned “[d]ue to the refusal of the Personnel
Committee to act to stop the continual sexual comments and innuendos and hostile
work environment in the workplace[.]” Derrick, however, did not observe
Boardwine engage in any conduct she considered sexually harassing after the
Personnel Committee issued its decision. After the Committee issued its decision,
but before her resignation, Young applied for and received the position of Executive
Director at the Victim Offender Reconciliation Program Community M ediation
Center. On February 9, 2003, Young subm itted her letter of resignation to M oore.
In her letter, Young explained the reasons for her resignation were due to
“philosophical differences” and “isolation in holding abusive men accountable.”
Young gave thirty-days notice. However, on February 27, 2003, Young submitted
a second letter of resignation effective immediately, due to her belief M oore had
5
retaliated against her by telling co-workers that Young had filed the harassment
grievance because M oore had caught her in a lie.
Dissatisfied with the outcome of the Personnel Committee’s investigation,
Plaintiffs filed suit against Avalon, M oore, and Boardwine alleging claims for hostile
work environment same-sex sexual harassment, constructive discharge, and
retaliation under Title VII, 42 U.S.C. § 2000e et seq.; the Tennessee Human Rights
Act (THRA), Tenn. Code Ann. § 4-21-101, et seq.; and 42 U.S.C. § 1985(3), a
federal statute prohibiting conspiracies to violate civil rights. The district court
dismissed for failure to state a claim Plaintiffs’ § 1985(3) conspiracy claim and
THRA claim, as well as Plaintiffs’ Title VII claims against Defendants M oore and
Boardwine. 2 See Fed. R. Civ. P. 12(b)(6). Thereafter, the district court granted
summary judgment to Avalon on Plaintiffs’ remaining claims for hostile w ork
environment same-sex sexual harassment, constructive discharge, and retaliation
under Title VII. The district court concluded: (1) Plaintiffs failed to present
sufficient evidence to establish a prima facie claim of hostile work environment
same-sex sexual harassment, (2) Derrick and Young’s claim for constructive
discharged failed because the work environment was not sufficiently unbearable that
a reasonable person would feel com pelled to resign, and (3) Baugham and Lee’s
retaliation claim failed because they did not suffer an adverse employment action
2
Plaintiffs have not appealed the district court’s dismissal of these claims.
6
after filing the grievance. Plaintiffs filed a motion for post-judgment relief. The
district court summarily denied the motion, and Plaintiffs appealed.
II.
O ur standard of review is a familiar one. W e review the district court order
granting summary judgment de novo. See Tysinger, 463 F.3d at 572. Summary
judgment is proper “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 any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). To overcome summary judgment, the
nonmoving party “must rebut such a showing by presenting sufficient evidence on
which a jury could reasonably find” in its favor. Clark v. United Parcel Service,
Inc., 400 F.3d 341, 347 (6th Cir. 2005)
A.
Plaintiffs’ hostile work environment claim focuses on Boardwine’s use of
offensive language and offensive behavior in and outside the workplace. The
allegedly harassing behavior took place over a period of approximately three years.
W e set forth each Plaintiffs’ allegations of sexual harassment considered by the
district court in granting summary judgment.
1.
7
Derrick makes the following allegations of sexual harassment: According to
Derrick, on one occasion she was having a conversation with M oore and Boardwine
when Boardwine began “caressing [M oore] and stroking her hair” and telling M oore
“she was the love of her life.” Derrick thought Boardwine “was just trying to show
[her] that it didn’t really matter what [she] thought.” On another occasion, she
observed Boardwine blow in M oore’s ear. Derrick was “the container for a lot of
complaints” about Boardwine. On one occasion, a co-worker came up to her and told
her “she was going to have a nervous breakdown because she felt caught in the
middle of [M oore and Boardwine’s]” relationship, because according to the co-
worker “[t]hey’re either fighting or fucking all the time.” On another occasion,
another co-w orker called Derrick to tell her Boardwine “had just cussed her out.”
W hen Derrick asked the co-worker what happened, “she said that [Boardwine] hadn’t
gotten a message that she felt like she should have gotten and so she cursed and
yelled” at the co-w orker.
Boardwine’s behavior also made it difficult for Derrick to discipline her
subordinates when they too acted unprofessionally. For example, when Derrick
w ould talk to Eve Bowman, one of her subordinates, about her unprofessional
behavior, Eve would defend her conduct by comparing herself to Boardwine.
Derrick believes Boardwine’s behavior created a hostile work environment. For
example, Derrick remembered that on one occasion, Boardwine became visibly upset
8
and began “stomping through the office talking about what a goddam day care that
she was running” because an employee called in sick. Derrick once witnessed
Boardwine “rubbing” her genital area and “making comm ents” after Boardwine
accidently spilled a drink on herself. Derrick, however, could not rem ember the
comments.
2.
Young makes the following allegations of sexual harassment: On one occasion,
Young bumped into a co-worker and Boardwine “inhaled deeply and leaned back and
said something about she either wanted some pussy or had to get some pussy[.]”
Once Young observed Boardwine “berating” a co-worker who was unloading a truck,
and making com m ents about how she was “sweating like a hog or sweating like a
man.” On another occasion, Boardwine made a comment to Young about how a co-
worker’s ergonomic mouse pad had a “hard-on” and how Boardwine’s pen had
“ejaculated all over” her when it leaked ink. Once M oore and Boardwine had a
“scream fest” which “terrified” Young. Young found offensive Boardwine’s
reference to a particular judge as a “limp dick.” And Boardwine would use “the F
word” and curse a lot as well as “storm[] around the office” which intimidated
Young. On one occasion, Boardwine played a prank on a co-worker that “disturbed
[Young] so bad[ly] [she] couldn’t go back to the office” that afternoon.
3.
9
B augham makes the following allegations of sexual harassment: O n
Baugham ’s 38th birthday, M oore and Boardwine came to B augham’s house for a
pool party. At the time, Boardwine was not an Avalon employee. The three went
skinny-dipping, and M oore and Boardwine “kept kissing and fondling each other[.]”
This made Baugham uncomfortable. That same day, M oore asked Baugham w hat she
thought about hiring Boardw ine. B augham considered M oore’s question as
harassing. On one occasion, M oore, Boardwine, Baugham, and Lee went to a
restaurant after work to have drinks. As Baugham and Lee were leaving, Boardwine
stood by a large glass window and grabbed her genitals. Baugham believes
Boardwine grabbed her genitals to be “crude and vulgar” because that is “just the
way [Boardw ine] would act in public a lot and in private.” On another occasion at
the same restaurant, Boardwine “was licking everyone at the table” and then M oore
“licked her back and they were licking each other.”
Baugham once saw M oore and B oardw ine “making out in front of the
Christmas tree” at the office. Baugham said something like “Get a room , or You
guys stop that[,]” because she felt “very uncomfortable[.]” But when they did not
stop, she left the room. Boardwine “alw ays made comments about her pussy”
claiming it was her “cat.” One time after a meeting, B oardw ine “spread her legs
open and drug [sic] her hands up to her [genitals] and said, I got to go home and give
my pussy some medicine[.]” On a num ber of occasions, M oore and Boardwine
10
would tell a joke about “Sally W hiskey,” a “lesbian frontier w oman,” and if you did
not “participate” Boardwine would “get very ugly” and would “say very ugly
comm ents to you and about you.” Boardwine talked about her and M oore sharing a
yeast infection and how they were passing it back and forth. Lastly, B augham
complains she was subjected to listen to Boardwine’s stories about her sex life with
M oore.
4.
Lee makes the following allegations of sexual harassment: Boardwine would
get “really close” to M oore. Once, she observed Boardwine walk up to M oore and
put her breast on M oore’s head. Boardwine’s conduct “shocked her” because she
“didn’t think that that should be going on” at work. Lee believes Boardwine’s
behavior w as harassing. Lee reported the incident to Baugham, but does not recall
if Baugham did anything about it. Once she overheard Boardwine telling a co-
worker that her pen had “ejaculated all over her hand.” Once Boardwine commented
to her that “her favorite position was face down[.]” O nce at a staff meeting,
Boardwine said she was not wearing a bra and “she rubbed her hands over her breasts
until her nipples got hard and she w as bouncing them around and talking to them and
looking at me and anybody else that would pay attention to her.” Lee complained to
Baugham. After a meeting Lee observed Boardwine rub her genitals and say “she
had to give her pussy some medicine.” Lee also observed Boardwine stand at the
11
window of the restaurant grabbing her genitals and “moving it up and down” as Lee
and B augham were leaving. Lee heard Boardwine call a particular individual on tw o
or three occasions a “limp dick.” And on one occasion she commented that “maybe
. . . if she gave him a blow job he would change his mind.” Lee heard other
employees use profanity in the office, including Baugham.
B.
Plaintiffs argue the district court erred in finding Plaintiffs’ evidence did not
create a genuine issue of material fact as to their claim for hostile work environment
same-sex harassment. Title VII makes it unlaw ful for an employer to discriminate
against an employee with respect to her “compensation, terms, conditions, or
privileges of employment, because of . . . sex.” 42 U.S.C. § 2000e-2(a)(1).
Discrimination based on sex that creates a hostile or abusive working environment
violates Title VII. See Clark, 400 F.3d at 347; accord Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (noting discrimination “because of AAA sex ” includes
“requiring people to work in a discriminatorily hostile or abusive environment”). To
establish a prima facie claim for hostile work environment same-sex harassment, an
employee must establish (1) she is a member of a protected class, (2) she was
subjected to unwelcome sexual harassment, (3) the harassment was based on her sex,
(4) the harassm ent created a hostile work environment, and (5) the employer failed
12
to take reasonable steps to prevent and correct any sexually harassing behavior. See
Bowman v. Shawnee State Univ., 220 F.3d 456, 462-63 (6th Cir. 2000).
Plaintiffs must overcome a high threshold to demonstrate actionable harm, for
“complaints attacking the ordinary tribulations of the workplace, such as the sporadic
use of abusive language, gender-related jokes, and occasional teasing” are
insufficient to obtain relief under Title VII. Faragher v. City of Boca Raton, 524
U.S. 775, 788 (1998) (internal quotation omitted). As with all harassment, same-sex
harassment must be “because of sex” to be actionable under Title VII. See Oncale
v. Sundow ner O ffshore Servs., Inc., 523 U .S. 75, 80 (1998). In other words,
Plaintiffs must show that but for their gender they would not have been harassed.
See Williams v. General M otors Corp., 187 F.3d 533, 565 (6th Cir. 1999). Thus,
“‘[i]f 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.’” Dick v. Phone Directories Company, Inc., 397 F.3d 1256, 1263 (10th
Cir. 2005) (quoting Stahl v. Sun M icrosystems, Inc., 19 F.3d 533, 538 (10th Cir.
1994)).
Not every sexually hostile work environment, however, is actionable under
Title VII. To fall within the purview of Title V II, the w orkplace must be “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
13
working environment.” Harris, 510 U.S. at 21 (internal quotations and citations
omitted). W e evaluate the severity of the harassment from the perspective of a
reasonable person in the employee’s shoes, considering the totality of the
circumstances. See Oncale, 523 U.S. at 81 (citing Harris, 510 U.S. at 23).
Appropriate factors for consideration included, “‘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.’” Faragher, 524 U.S. at 787-88 (quoting Harris, 510 U.S. at 23).
“[S]imple teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the ‘terms and conditions of
employment.” Id. at 788 (internal citation and quotations omitted). In making this
determination, we must consider “the social context in which particular behavior
occurs and is experienced by its target.” Oncale, 523 U.S. at 81.
At last, even after a hostile w ork environment has been established, “[f]or an
employer to be liable for the sexual harassment of an employee by a coworker, the
harassed employee must show the employer both (1) knew or should have known of
the harassment and (2) failed to take prompt and appropriate corrective action.”
E.E.O.C. v. Harbert-Yeargin, Inc., 266 F.3d 498, 518 (6th Cir. 2001). 3 Generally,
3
In contrast, when the harassment is by a supervisor, the defendant is held
strictly liable. See Clark, 400 F.3d at 348 (finding UPS “automatically liable for
(continued...)
14
“a response is adequate if it is reasonably calculated to end the harassment.” Jackson
v. Quanex Corp., 191 F.3d 647, 663 (6th Cir. 1999). Evidence a supervisor knew of
the harassing conduct suffices to establish constructive notice. See Randolph v. Ohio
Dep’t of Youth Serv., 453 F.3d 724, 735 (6th Cir. 2006) (finding summary judgment
improperly granted where the plaintiff’s testimony indicated supervisors were aw are
of the harassment but largely ignored it).
C.
A fter reviewing the record before us, we agree that summary judgment was
proper on Plaintiffs’ claim of hostile w ork environment same-sex harassment.
Notwithstanding Plaintiffs’ argument to the contrary, they presented no evidence
from which a jury could reasonably find in their favor. B oardwine’s behavior was
undoubtedly vulgar and wholly inappropriate for the workplace. B ut Plaintiffs
presented no evidence that Plaintiffs’ sex motivated Boardwine’s behavior. See
Oncale, 523 U.S. at 80-81 (discussing three evidentiary routes under which a
plaintiff in a same-sex harassment suit may prove an inference of discrimination
because of sex). In the context of same-sex harassment, an employee may prove
discrimination based on sex w hen, for example, evidence shows a woman harassed
3
(...continued)
the alleged hostile work environment created by Brock because he was the
manager of the entire Claims Department where both Clark and Knoop worked,
and therefore had supervisory authority over them”). Here, however, Plaintiffs
acknowledged M oore did not engage in any behavior they considered harassing.
15
other women “in such sex-specific and derogatory terms . . . as to make it clear that
the harasser is motivated by general hostility to the presence of women in the
workplace.” Id. at 80. M ost of Plaintiffs’ allegations of harassment, however, are
devoid of sex-specific or derogatory terms and have absolutely nothing to do with
the fact that Plaintiffs are females. Plaintiffs argue Boardwine’s behavior show s
“anti-female animus” because Plaintiffs were “subjected to gender specific epitaph
and comm ents or conduct applicable to the female genitalia[.]” Harassment does not
arise, however, simply because “the words used [or the gestures used] have sexual
content or connotations.” Id. And in fact, D errick, Young, and Lee admitted
Boardwine did not direct any sexual comments or innuendos toward them. Baugham
presented no evidence to the contrary. Plaintiffs’ conclusory allegations and
unsupported speculations that Boardwine harbored hostility toward females is
insufficient to overcome summary judgment. See Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).
M otivation aside, no reasonable jury could conclude the w orking environment
was sufficiently severe or pervasive to sustain Plaintiffs’ claim. M ost, if not all, of
Plaintiffs’ allegations consist of one time occurrences that took place over a period
of three years. Even considering them in the totality, we can hardly say the
environment was permeated w ith discriminatory intimidation, ridicule, and insult.
Harris, 510 U.S. at 21. Boardwine’s conduct was certainly vulgar, but Title VII
16
does not attempt “to purge the workplace of vulgarity.” Baskerville v. Culligan Int’l
Co., 50 F.3d 428, 430 (7th Cir. 1995). And Plaintiffs presented no evidence the
working environm ent was “so objectively offensive as to alter the ‘conditions’” of
their employment. Oncale, 532 U.S. at 81. Baugham and Lee worked in an office
located in a different city and only saw Boardwine during staff meetings. Lee saw
Boardwine four times a month. W hile Y oung and Boardwine worked in the same
office, Young only saw Boardwine once a week. M oreover, both Baugham and
Derrick admitted engaging in similar conduct. Derrick admitted using profanity,
discussing her intimate relationships with men, and telling lewd and suggestive
jokes. B augham admitted to discussing her personal and intimate sex life with her
co-workers, including Boardwine. And Lee heard co-workers, including Baugham,
use profanities at work.
Lastly, Plaintiffs cannot prove Avalon’s liability. W hile M oore might have
been aware of some of Boardwine’s behavior, not until Plaintiffs filed their formal
grievance did M oore learn Plaintiffs considered Boardwine’s behavior harassing.
And after Plaintiffs filed the grievance, Avalon took prompt and appropriate
remedial action to rectify the situation. Harbert-Yeargin, 266 F.3d at 518. Plaintiffs
own evidence supports a conclusion that after they filed the grievance they did not
observe Boardwine engage in any harassing behavior. Therefore, the district court
17
did not err in granting summary judgment to Avalon on Plaintiffs’ hostile work
environment same-sex harassment claim.
III.
Derrick and Young also argue the district court erred in concluding as a matter
of law that Avalon did not constructively discharge them. W e disagree. Harassment
that creates a hostile w orking environment may in some circumstances constructively
discharge an employee. To prevail on a claim for constructive discharge, in addition
to showing the harassing behavior was sufficiently severe to alter the terms and
conditions of employment, the employee must show “working conditions [became]
so intolerable that a reasonable person would have felt compelled to resign.”
Pennsylvania State Police v. Suders, 542 U.S. 129, 146-47 (2004).
In addition to the fact Derrick and Young have not shown the working
environment at Avalon was sufficiently severe to alter the terms and conditions of
their employment, neither Young nor D errick has proven they felt compelled to
resign. Derrick resigned on January 21, 2003, effective immediately, while Young
resigned on February 9, 2003, effectively thirty-days later. Both resignations came
after the Personnel Committee reached its decision and well after all harassing
behavior had stopped. Therefore, the w orking environment at the time of their
resignation was not so intolerable so as to lead a reasonable person to resign from
her em ploym ent. M oreover, neither Derrick nor Young resigned as a result of an
18
intolerable environment. Derrick resigned because she was unsatisfied with
Avalon’s decision and Young resigned citing philosophical differences. 4 Therefore,
the district court did not err in aw arding Avalon summary judgment on Plaintiffs’
constructive discharge claim.
IV.
Lastly, Baugham and Lee argue the district court erred in concluding Avalon
did not retaliate against them for filing their grievance. They cite to numerous acts
Avalon took against them in retaliation for filing the grievance. In granting Avalon’s
m otion for summary judgment on their Title VII retaliation claim, the district court
found Baugham and Lee’s allegations did not rise to the level of adverse employment
action. W hile this appeal was pending, however, the Supreme Court decided
Burlington N. & Santa Fe Ry. Co. v. White, 548 __ U.S. __, 126 S. Ct. 2405 (2006),
changing the legal standard to be applied to claims of retaliation brought under Title
4
Young also argues she was constructively discharged when she made her
resignation effective immediately after learning M oore had allegedly retaliated
against her by telling some employees Young had filed the grievance because
M oore caught her in a lie. Young’s argument is unpersuasive for two reasons.
First, Young had already resigned from her employment. Second, Avalon can
defend against such claim because Y oung did not com plain to M oore’s
supervisors about M oore’s purported conduct so as to give Avalon an opportunity
to remedy the situation. See Suders, 542 U.S. at 133-34 (“An employer may
defend against a [constructive discharge] claim by showing both (1) that it had
installed a readily accessible and effective policy for reporting and resolving
complaints of sexual harassment, and (2) that the plaintiff unreasonably failed to
avail herself of that employer-provided preventive or remedial apparatus.”).
19
VII. W e express no opinion as to how this issue should be resolved. W e think it
proper to allow the district court to first address this issue in light of Burlington.
Accordingly, we remand to the district court Baugham and Lee’s Title VII retaliation
claim. 5
V.
For the foregoing reasons, we affirm the district court’s order granting
summary judgment in Avalon’s favor as to Plaintiffs’ claims for a sexual hostile
work environment and constructive discharge under Title VII. W e remand Plaintiffs’
claim for retaliation under Title V II w ith instructions that the district court
reconsider its decision in light of Burlington N. & Santa Fe v. White.
5
Following the district court’s grant of summary judgment in Avalon’s
favor, Plaintiffs filed a post-judgment motion seeking to am end the court’s
conclusion, amend or alter the court’s judgment, or obtain relief from judgment
under Rule 52(b), Rule 59(e), and Rule 60(b) of the Federal Rules of Civil
Procedure respectively. Plaintiffs argued the district court erred by failing to
consider certain evidentiary documents filed in support of their motion in
opposition to summary judgment. In granting summary judgment, the district
court noted “Plaintiffs’ supporting papers in opposition . . . consist[] of unsworn
and unsigned responses to interrogatories and unauthenticated documents . . .
[that] do not comply with Rule 56(e).” Plaintiffs appeal the court’s determination
arguing in conclusory fashion the court comm itted error. W e disagree. After
reviewing the record, we conclude the district court properly disregarded
Plaintiffs’ responses to Avalon’s interrogatories and responses to Avalon’s
request for production as the documents Plaintiffs submitted in support of their
opposition motion were neither signed nor authenticated and, therefore, are
inadmissible evidence for purposes of summary judgment. See Fed. R. Civ. P.
56(e).
20
AFFIRM ED IN PART, VACATED IN PART, AND REM ANDED IN
PART FOR FURTHER CONSIDERATION CONSISTENT W ITH THIS
O PIN IO N.
21