Gunnell v. Utah Valley State College

• Decision Date: 19 August 1998
• Docket Number: No. 96-4155,96-4155
• Citation: 152 F.3d 1253,1998 WL 488796
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 112, 73 Empl. Prac. Dec. P 45,448, 135 Lab.Cas. P 33,719, 128 Ed. Law Rep. 991, 4 Wage & Hour Cas.2d (BNA) 1488, 98 CJ C.A.R. 4356 Rosalie GUNNELL, Plaintiff-Appellant. v. UTAH VALLEY STATE COLLEGE, formerly known as Utah Valley Community College; Robert E. Clark; Ronald Greenleaf; and Karla Holm, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1253

152 F.3d 1253

79 Fair Empl.Prac.Cas. (BNA) 112,

73 Empl. Prac. Dec. P 45,448,

135 Lab.Cas. P 33,719, 128 Ed. Law Rep. 991,

4 Wage & Hour Cas.2d (BNA) 1488, 98 CJ C.A.R. 4356

Rosalie GUNNELL, Plaintiff-Appellant. v. UTAH VALLEY STATE COLLEGE, formerly known as Utah Valley

Community College; Robert E. Clark; Ronald

Greenleaf; and Karla Holm, Defendants-Appellees.

No. 96-4155.

United States Court of Appeals, Tenth Circuit.

Aug. 19, 1998.

Kenneth B Grimes, Jr., Perkins, Schwobe & McLachlan, Salt Lake City, Utah, for Plaintiff-Appellant.

Nancy L. Kemp, Assistant Attorney General (Jan Graham, Attorney General, with her on the briefs, Salt Lake City, Utah), for Defendants-Appellees.

Before EBEL and HOLLOWAY, Circuit Judges, and BLACK, ^* District Court Judge.

EBEL, Circuit Judge.

Appellant Rosalie Gunnell ("Gunnell") filed suit against her former employer, Utah Valley State College ("UVSC"), claiming that We affirm the judgment in favor of UVSC on Gunnell's FMLA claim on the ground that Gunnell's FMLA rights were not violated by terminating her employment. Moreover, because the court's instructions adequately instructed the jury on the law of employer liability for retaliation, we affirm the jury verdict in favor of UVSC on Gunnell's Title VII retaliation claim. However, in light of the Supreme Court's recent decisions regarding employer liability for harassment committed by an employee's supervisor, we reverse summary judgment in favor of UVSC on Gunnell's Title VII sexual harassment claim and remand for further proceedings.

she was subjected to sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 and that she was denied a medical leave of absence in violation of the Family and Medical Leave Act of 1993 ("FMLA"). The district court granted summary judgment for UVSC on the sexual harassment and FMLA claims, and a jury decided against Gunnell on the retaliation claim. Gunnell appeals the grants of summary judgment and the instruction given the jury regarding employer liability in the retaliation context.

BACKGROUND

Gunnell was employed as a secretary in UVSC's Plant Operations Department. Her direct supervisor was Director of Maintenance/Custodial Services Robert Clark ("Clark"). Gunnell also did some work for the Chief of Campus Police, Robert Greenleaf ("Greenleaf").

In April 1993, Gunnell complained to Karla Holm ("Holm"), UVSC's Personnel Director, that over the past year Clark and Greenleaf had subjected her to acts and communications of a sexual nature, including gestures, comments, obscene jokes, pictures, and unwelcome physical contact such as hugs. Holm met with Clark and advised him to cease the offensive conduct. Holm also told Gunnell she would seek positions to which Gunnell might transfer out of the Plant Operations Department.

While Holm was investigating her complaint, Gunnell took an administrative leave of absence. Clark admitted to Holm that some of the conduct Gunnell complained of had occurred, but denied the other alleged incidents. Associate Vice President for Facilities Patrick Hayes ("Hayes"), to whom Holm reported the situation, directed Clark to distribute UVSC's sexual harassment policy to his staff and discuss it with them. Hayes felt that this would give employees a chance to bring forth any other allegations of harassment. None did. Hayes instructed Clark, Greenleaf, and other directors that there was to be no retaliation against Gunnell when she returned. In mid-May, Holm told Gunnell that she would not be transferred and that she would have to return to work by May 24 or her employment would be terminated.

Gunnell responded that she was suffering from anxiety and stress related to her work situation and took sick leave from May 24 to July 8. During this time, she filed two internal written grievances pursuant to UVSC's employee grievance policy. In the grievances, she alleged that Clark and Greenleaf had sexually harassed her, and she requested a transfer to a different department. Before Gunnell returned to work, the grievance committee decided that inappropriate actions had been taken by Clark and Greenleaf, but that Gunnell should return to her position in Plant Operations in a restructured position with the same salary. Gunnell did not appeal the committee's resolution.

Immediately after Gunnell complained to Holm, the sexual harassment stopped. Gunnell continued to work in the Plant Operations Department between July 9 and November 9, 1993. During this time, she alleges, she was given inferior office equipment and fewer responsibilities and she was treated badly by co-workers. On September 17, 1993, she filed a notice of discrimination with the Utah Anti-Discrimination Division ("UADD"). On the notice, only the box marked "retaliation" was marked under the "Cause of discrimination based on" section. The explanation stated:

Personal Harm: My job duties have been unfavorably changed, people have tried to set me up at work, I have been treated unfavorably by management and have been treated unfavorably by co-workers.

Respondent's Reason: None

Discrimination Statement: I accused two of my supervisors of sexual harassment. The Respondent conducted an internal investigation into my charges, and the harassment was found to have occurred. Although the harassment stopped, I was subsequently retaliated against.

While Respondent was conducting its investigation into my sexual harassment charges, I took two months sick leave. Upon my return, my job duties were changed significantly from what they had been before. My more complex duties were taken away, and I was assigned menial tasks such as copying, maintaining files and working the phones. My job description was completely redone and was minimized in structure and complexity. In addition, I was initially told there was no guarantee that my job title and salary would remain the same. Although I have since received assurance that my title and salary are guaranteed, I still feel that they could be changed.

In addition, false accusations have been made against me and people have tried to set me up. After leaving work one Friday, someone got into my desk and placed confidential payroll records on top of the desk. As a result, it appeared that I had left confidential information out in the open. I was also accused of costing Respondent $4,000 by using the wrong purchase number. The purchase number was used during my absence, however, and the loss was $2,700. The person who used the purchase number told me that he was told to use it, but would not state who had told him to use the number. The personnel office held a meeting with me in which they accused me of creating a hostile work environment by taking notes in my day planner I felt like I was being personally attacked in the meeting. In addition, I have been left out of office communications and my co-workers have been told not to talk to me.

I also feel that I am discriminated against because of my age because my boss treats the younger employees more favorably.

I have reason to charge this employer with unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Utah Anti-Discrimination Act of 1965, as amended.

On November 9, Hayes gave Gunnell a letter notifying her she was on probation for taking notes about her fellow employees while at work and for creating a hostile work environment through excessive complaining and lack of cooperation with her co-workers. The letter stated that any actions "which are deemed to be counter-productive to the functions housed at the Planning Center during this probationary period will result in your immediate termination." Gunnell went to Clark's office and said, "I've had it. I'm through. This is it. I have not created a hostile work environment. Good luck Bob Clark!" She gathered her belongings and went home. From home, Gunnell called Holm and said she had left the office because of illness. Gunnell said she intended to take medical leave and that she would have her doctor prepare a report. On that day, Gunnell also prepared a supplement to her UADD complaint. The supplement stated:

I, Rosalie Gunnell, hereby supplement my Charge of Discrimination in the above-entitled action as follows:

1. I was subjected to a continuing pattern and practice of sexual harassment by Utah Valley Community College, now known as Utah Valley State College ("UVSC"), and my Supervisor, Robert Clark, continuing up to at least April 16, 1993.

2. Following my expression of opposition [sic] to said pattern and practice of sexual harassment, on or about April 27, 1993, I have been subjected to a continuing pattern and practice of retaliation from UVSC management and employees, continuing up to at least October 25, 1993.

3. On or about October 25, 1993, I was denied transfer to a position for which I was qualified in retaliation for my having expressed opposition to said acts of sexual harassment and retaliation.

Gunnell called in sick on November 10, 11, and 12, 1993. On November 13, she received a letter from Hayes terminating her employment, effective November 12, because of her insubordination and disruptive behavior, both on November 9 and on other occasions.

Gunnell filed suit for sexual discrimination and retaliation under Title VII of the The Title VII retaliation claim went to trial. Gunnell objected to the district court's proposed jury instruction regarding the standard of employer liability for retaliation. Gunnell argued that the instruction should provide that UVSC could be found liable for retaliation if management-level employees knew or should have known about the retaliatory acts of Gunnell's co-workers and failed to stop them--essentially, a negligence standard. The district court rejected Gunnell's argument and limited the instruction to read that UVSC could be held liable for the acts only of its management and supervisory-level...