Académique Documents
Professionnel Documents
Culture Documents
DEC 23 1999
PATRICK FISHER
Clerk
TINA JESSEN,
Plaintiff-Appellant,
v.
BRUCE BABBITT, Secretary, United
States Department of the Interior;
BUREAU OF LAND
MANAGEMENT,
No. 98-8069
(District of Wyoming)
(D.C. No. 97-CV-289-J)
Defendants-Appellees.
I. INTRODUCTION
Tina Jessen sued her employer, the Bureau of Land Management (BLM),
claiming co-worker and defendant Wally Stiles created a sexually hostile work
environment which the BLM failed to remedy in violation of Title VII of the 1964
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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Civil Rights Act. The district court granted the BLM motion for summary
judgment on two alternative grounds: (1) Jessen did not produce sufficient
evidence upon which a reasonable jury could find the existence of a hostile work
environment under Title VII; and (2) she failed to demonstrate that the BLM
knew or should have known of Stiles alleged harassment, thus absolving her
employer of Title VII liability. Jessen appeals the district courts grant of
summary judgment, asserting that these two conclusions were error. This court
exercises jurisdiction pursuant to 28 U.S.C. 1291, reverses the grant of
summary judgment, and remands for further proceedings.
II. BACKGROUND 1
From 1993 to August of 1995, Tina Jessen was employed by the Wyoming
State Office of the BLM as a Supervisory Land Records Specialist. Her duties
included collecting and converting certain databases. Wally Stiles worked as the
BLMs State Data Administrator and was in charge of quality assurance over
databases. Stiles did not, however, function as Jessens supervisor.
In the Spring of 1994, Jessen advised Stiles and management not to certify
the Legal Land Description Database (the database), because she believed it
The following background discussion reflects this courts view of the
facts in a light most favorable to Jessen, the party opposing summary judgment.
See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996).
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grievance objecting to the reassignment. After the BLM denied her objection,
Jessen filed a formal grievance in March of 1996. Nonetheless, the BLM
transferred Jessen into the new position in March. Finally, in November of 1996,
Jessen filed an EEO complaint alleging sexual harassment by Stiles.
On December 5, 1997, in the United States District Court for the District of
Wyoming, Jessen sued Bruce Babbit, the United States Department of the Interior,
and the BLM (collectively the BLM), and Stiles individually for violating Title
VII of the Civil Rights Act of 1964. The BLM then filed a motion for summary
judgment, which the district court subsequently granted. Jessen now appeals the
district courts order granting summary judgment in favor of the BLM.
III. ANALYSIS
This court reviews de novo a district courts grant of summary judgment,
applying the same legal standard utilized by the district court. See Charter
Canyon Treatment Ctr. v. Pool Co., 153 F.3d 1132, 1135 (10th Cir. 1998).
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Phyllis Stone as a stupid bitch, and to Nancy Hite as a dumb bitch, and a
stupid fucking cunt.
Additionally, Jessen may utilize evidence of Stiles conduct toward other
women to demonstrate his discriminatory intent. See Spulak v. K Mart Corp.,
894 F.2d 1150, 1156 (10th Cir. 1990) (holding that testimony by other employees
about the defendants mistreatment of them based on age was relevant to the
issue of discriminatory intent in a Title VII age discrimination case); Heyne v.
Caruso, 69 F.3d 1475, 1480 (9th Cir. 1995) (holding that evidence of the
defendant employers harassment of other women is admissible in a sex
discrimination case because such evidence bears on the defendants
discriminatory intent). Affiant Nancy Hite stated that in August of 1995 she
heard Stiles call Jessen stupid fucking cunt, dumb fucking bitch, and stupid
bitch. Hite further stated that she too experienced Stiles physically intimidating
and sexually offensive behavior, such as his pushing up against and groping her
body and blocking her path. Three other female co-workers also submitted
affidavits which provide evidence of Stiles animosity toward women: Sue
Moberly termed Stiles behavior toward women as abrasive, hot-tempered,
intimidating, impliedly violent, and different than his treatment of men;
Diane OMeara stated that Stiles suggested I was a lesbian because of my
interest in outdoor sports and that his conduct was specifically directed towards
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women; and Sherry Latham described observing Stiles hostile and intimidating
conduct. The totality of this evidence suggests that Stiles harbors an intense
hostility toward women such that a reasonable jury could infer his physical
intimidation of Jessen was motivated by his animus toward her as a woman.
Moreover, in determining whether an objectively hostile work environment
existed, this court may consider any admissible evidence of the above-described
conduct directed toward other women, if Jessen was aware of that conduct. See
Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 782 (10th Cir.
1995); Creamer v. Laidlaw Transit, Inc., 86 F.3d 167, 171 (10th Cir. 1996).
[O]ne of the critical inquiries in a hostile environment claim must be the
environment. Evidence of a general work atmosphere thereforeas well as
evidence of specific hostility directed toward the plaintiffis an important factor
in evaluating the claim. Hicks, 833 F.2d at 1415. According to Jessens
affidavit and deposition, she personally observed Stiles harass other female
workers. 2
Jessen also asserts that she learned of further opprobrious conduct and
comments exhibited and made by Stiles when co-workers told her about this
behavior. The BLM contends that such evidence is inadmissible hearsay. Indeed,
[i]t is well settled in this circuit that we can consider only admissible evidence in
reviewing an order granting summary judgment. Gross v. Burgraff Constr. Co.,
53 F.3d 1531, 1541 (10th Cir. 1995). This court need not rely on this further
evidence, however, to conclude that Jessen created a material issue of fact as to
whether a hostile work environment existed. Therefore, we decline to determine
the admissibility of this or any other evidence proffered by either party but not
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referenced in this opinion. Those decisions are better left to the trial court on
remand.
Schaeffers statement to Jessen would not constitute hearsay because it
qualifies as an admission by a party opponent pursuant to Fed. R. Evid.
801(d)(2)(D).
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B. Employer Liability
Under Title VII, an employer may be held liable for hostile work
environment sexual harassment committed by one employee against another if the
employer negligently or recklessly failed to respond to the harassment. See
Hirschfeld v. New Mexico Corrections Dept, 916 F.2d 572, 577 (10th Cir. 1990).
This liability attaches when a plaintiff establishes that an employer had actual or
constructive notice of the hostile work environment and failed to respond
adequately to that notice. Davis, 142 F.3d at 1342. In granting summary
judgment in favor of the BLM, the district court concluded that the BLM could
not be held liable even if a hostile work environment existed because the BLM
lacked notice that any such harassment was occurring. Jessen contends that this
conclusion was erroneous. 4
The district court sua sponte raised this basis for granting summary
judgment in its summary judgment order. The BLMs motion for summary
judgment argued only that the undisputed facts failed to demonstrate the existence
of a sexually hostile work environment but never discussed employer liability.
The district court in its summary judgment order and both parties in their briefs
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Jessen further asserts that the BLM was on notice of the alleged
harassment pursuant to Restatement (Second) of Agency 219(2)(d). See
Harrison v. Eddy Potash, 112 F.3d 1437, 1450 (10th Cir. 1997) (holding that
under section 219(2)(d) an employer may be liable if the harassing supervisor
has actual or apparent authority to control the victims working environment, and
is aided in harassing the victim by that authority). Because this court concludes
that a material issue of fact exists regarding the question of actual notice, we need
not address this additional notice argument.
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IV. CONCLUSION
In opposition to the BLMs motion for summary judgment, Jessen
presented sufficient admissible evidence to create genuine issues of material fact
whether a sexually hostile work environment existed and whether the BLM had
notice of the alleged harassment. This court therefore REVERSES the grant of
summary judgment and REMANDS to the United States District Court for the
District of Wyoming for further proceedings consistent with this opinion.
Michael R. Murphy
Circuit Judge
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