Seymore v. Shawver & Sons, Inc.

• Decision Date: 18 April 1997
• Docket Number: No. 584,No. 96-5196,D,584,96-5196
• Citation: 111 F.3d 794
• Parties: 73 Fair Empl.Prac.Cas. (BNA) 1132, 70 Empl. Prac. Dec. P 44,660, 46 Fed. R. Evid. Serv. 1163, 97 CJ C.A.R. 598 Lou Ella SEYMORE, Plaintiff-Appellant, v. SHAWVER & SONS, INC.; Local 584 International Brotherhood of Electrical Workers, International Brotherhood of Electrical Workers, Localefendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 794

111 F.3d 794

73 Fair Empl.Prac.Cas. (BNA) 1132,

70 Empl. Prac. Dec. P 44,660,

46 Fed. R. Evid. Serv. 1163, 97 CJ C.A.R. 598

Lou Ella SEYMORE, Plaintiff-Appellant, v. SHAWVER & SONS, INC.; Local 584 International Brotherhood of Electrical Workers, International Brotherhood of Electrical Workers, Local No. 584 Defendants-Appellees.

No. 96-5196.

United States Court of Appeals Tenth Circuit.

April 18, 1997.

Lou Ella Seymore, Tulsa, OK, pro se.

Tony G. Puckett of Lytle Soule & Curlee, Oklahoma City, OK, for Defendant-Appellee Shawver & Sons, Inc. Thomas F. Birmingham of Birmingham, Morley, Weatherford & Priore, Tulsa, OK, for Defendant-Appellee Local 584 International Brotherhood of Electrical Workers.

Before BRORBY, EBEL and KELLY, Circuit Judges.

BRORBY, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Lou Ella Seymore worked as a journeyman electrician for Shawver & Sons, Inc. ("Shawver") from August 31, 1992 until February 5, 1993. Ms. Seymore was a member of the International Brotherhood of Electrical Workers Union, and she had been referred to Shawver by the union.

Ms. Seymore claims she was subjected to a plethora of sexually offensive remarks and gestures during her tenure at Shawver. The record indicates Ms. Seymore complained about the alleged improper conduct to the job steward on a number of occasions. Ms. Seymore also filed a grievance with the International Brotherhood of Electrical Workers. Nevertheless, Ms. Seymore claims the sexually inappropriate conduct never ceased.

On February 3, 1993, the Equal Employment Opportunity Commission received a charge of discrimination against Shawver from the Oklahoma Human Rights Commission; the charge named Ms. Seymore as the charging party. The charge alleged racial and sexual discrimination in violation of Title VII of the Civil Rights Act of 1964. On February 5, 1993, Shawver terminated Ms. Seymore's employment. Thereafter, on February 14, 1993, Ms. Seymore filed a charge against Shawver with the Equal Employment Opportunity Commission, alleging racial and sexual discrimination.

In April 1993, Ms. Seymore filed a charge of discrimination against the International Brotherhood of Electrical Workers with the Equal Employment Opportunity Commission. The charge against the union also alleged racial and sexual discrimination.

In February 1994, Ms. Seymore filed suit against Shawver and the International Brotherhood of Electrical Workers in the United States District Court for the Northern District of Oklahoma. The complaint charged Shawver and the union with sexual harassment and "discriminatory and retaliatory practices." The complaint did not allege racial discrimination.

Prior to trial, the district court sustained a motion for summary judgment filed by the International Brotherhood of Electrical Workers and dismissed the union from the action. The court also determined it did not have subject matter jurisdiction over Ms. Seymore's retaliation claim against Shawver. Consequently, the court granted summary judgment in Shawver's favor on that claim.

Thereafter, Shawver filed a motion in limine requesting the court to prohibit Ms. Seymore from admitting certain evidence Shawver deemed to be probative only of racial discrimination, on the grounds that only sexual discrimination was at issue before the court. The court granted Shawver's motion and prohibited Ms. Seymore from introducing, inter alia, a certain "Far Side" cartoon into evidence.

The trial of Ms. Seymore's sexual harassment claim against Shawver began on May 22, 1996. Two days later, the jury returned a verdict in favor of Shawver. Ms. Seymore then initiated this appeal, pro se.

I. ISSUES

Ms. Seymore raises three issues on appeal: (1) whether the district court erred in granting summary judgment in favor of the International Brotherhood of Electrical Workers; (2) whether the district court erred in determining it lacked subject matter jurisdiction over Ms. Seymore's retaliation claim against Shawver; and (3) whether the district court abused its discretion in prohibiting Ms. Seymore from introducing the "Far Side" cartoon into evidence.

II. ANALYSIS

A. International Brotherhood of Electrical Workers Summary Judgment Motion

Ms. Seymore first argues the district court erred in granting summary judgment in favor of the International Brotherhood of Electrical Workers. We review the grant or denial of a motion for summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c). Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir.1995). Under Rule 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue of material fact is genuine where a reasonable jury could return a verdict for the party opposing summary judgment. Wolf, 50 F.3d at 796 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). In applying the summary judgment standard, we must examine the factual record and reasonable inferences therefrom in the light most favorable to the non-movant. Wolf, 50 F.3d at 796. ¹

Although the arguments in Ms. Seymore's pro se brief are not perfectly clear, we assume Ms. Seymore argues she presented evidence sufficient to establish union representatives engaged in unlawful sexual harassment, thus exposing the union to direct liability under Title VII. It is well settled that a plaintiff may establish a violation of Title VII by showing discrimination based on sex has created a hostile or abusive working environment. ² Meritor Sav. Bank, 477 U.S. at 66, 106 S.Ct. at 2405. To establish a sexually hostile work environment existed, a plaintiff must prove the following elements: (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on sex; and (4) the harassment altered a term, condition, or privilege of the plaintiff's employment and created an abusive working environment. See Marquart v. Lodge 837, Int'l Ass'n of Machinists, 26 F.3d 842, 853 (8th Cir.1994). An employer will not be liable for the existence of a hostile sexual work environment unless the plaintiff establishes: (1) the employer "fail[ed] to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known"; (2) the unlawful actions of the harassing employee were within the scope of his employment; or (3) the harassing employee " 'purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he [or she] was aided in accomplishing the tort by the existence of the agency relationship.' " Hirschfeld v. New Mexico Corrections Dept., 916 F.2d 572, 576-79 (10th Cir.1990); see also Sauers v. Salt Lake County, 1 F.3d 1122, 1125 n. 3 (10th Cir.1993).

Here, Ms. Seymore alleges the International Brotherhood of Electrical Workers engaged in several instances of improper conduct. First, Ms. Seymore contends the evidence reveals the union general foreman and union steward both failed to remove a cartoon that Ms. Seymore felt discriminated against her. Ms. Seymore claims the union steward then tried to gain possession of the cartoon by offering Ms. Seymore his wallet. Ms. Seymore also contends the union agent told her he did not have time to investigate her harassment complaint. Finally, Ms. Seymore complains the union's business manager behaved in a "hostile and intimidating manner" toward her.

Construing the factual record in the light most favorable to Ms. Seymore, we do not believe Ms. Seymore can establish the union subjected her to a hostile work environment. There is no evidence the union discriminated or took any adverse action against Ms. Seymore on account of her gender. Furthermore, Ms. Seymore's evidence fails to establish the harassment affected a term or condition of employment. An actionable hostile work environment exists only when a plaintiff is subjected to sexual harassment "sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment." Meritor Sav. Bank, 477 U.S. at 67, 106 S.Ct. at 2405 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982)). Here, the conduct Ms. Seymore complains of by the union is not severe enough to implicate Title VII. Thus, the district court's determination that the union was not directly responsible for sexual harassment under Title VII was proper and in accordance with law.

Ms. Seymore also appears to argue the trial court erred in determining as a matter of law the International Brotherhood of Electrical Workers was not responsible for the unlawful sexual harassment perpetrated by Shawver. According to Ms. Seymore, the union did not take prompt, remedial action in response to Shawver's allegedly unlawful conduct. It is true that a union may be held responsible under Title VII for discriminatory practices by an employer if the union does not take appropriate action against such practices. Romero v. Union Pac. R.R., 615 F.2d 1303, 1310 (10th Cir.1980). "A union cannot acquiesce in a company's prohibited employment discrimination and expect to evade Title VII liability for such discrimination." Id. at 1311. However, where a jury determines an employer did not engage in unlawful discrimination under Title VII, a union may not be held responsible under Title VII for the employer's actions.

In the present case...