53 F.3d 1531 (10th Cir. 1995), 94-8054, Gross v. Burggraf Const. Co.

Docket Nº:94-8054, 94-8061.
Citation:53 F.3d 1531
Party Name:Prac. Dec. P 43,689, Patricia GROSS, Plaintiff-Appellant/Cross-Appellee, v. BURGGRAF CONSTRUCTION COMPANY; George Randall Anderson, Defendants-Appellees/Cross-Appellants.
Case Date:April 25, 1995
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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53 F.3d 1531 (10th Cir. 1995)

Prac. Dec. P 43,689,

Patricia GROSS, Plaintiff-Appellant/Cross-Appellee,




Nos. 94-8054, 94-8061.

United States Court of Appeals, Tenth Circuit

April 25, 1995

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Jane A. Villemez of Graves & Villemez, P.C., Cheyenne, WY, for plaintiff/appellant.

Mark L. Carman of Williams, Porter, Day and Neville, P.C., Casper, WY, for appellee/cross-appellant Burggraf Const. Co., (Marvin L. Tyler of Bussart, West, Rossetti, Piaia and Tyler, P.C., Rock Springs, WY, with him on the brief), for defendant/appellee George Randall Anderson.

Before: ANDERSON, McWILLIAMS and ALARCON, [*] Circuit Judges.

ALARCON, Circuit Judge.

Patricia Gross appeals from the order granting summary judgment in favor of Burggraf Construction Company ("Burggraf") and George Randall Anderson ("Anderson"), in her action for gender discrimination, filed pursuant to 42 U.S.C. Sec. 2000e (1988 & Supp. IV 1992) ("Title VII"), 1 and for wrongful discharge. During the 1990 construction season, Gross was employed as a water truck driver for Burggraf, primarily under the supervision of Anderson.

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Gross asserts, inter alia, that Anderson embarrassed and humiliated her in front of other Burggraf employees; that he called her "dumb" and used profanity in reference to her, including calling her a "cunt"; and that he stated over the CB radio to another employee, "Mark, sometimes don't you just want to smash a woman in the face?" Burggraf cross-appeals from the denial of its motion to strike materials submitted by Gross in opposition to its motion for summary judgment.

We conclude that Gross failed to present sufficient admissible evidence to demonstrate that she was subjected to gender discrimination. We do not reach the issues raised in the cross-appeal because our independent review of the admissible evidence has persuaded us that we must affirm.


Gross seeks reversal of the order granting summary judgment. Gross frames the issues on appeal as follows:

1. Does a genuine issue of material fact exist as to whether the construction company's supervisor harassed its female driver because of her gender?

2. Does a genuine issue of material fact exist as to whether the misconduct inflicted upon the female employee was sufficiently severe to create a hostile work environment?

Gender discrimination can based upon sexual harassment or a hostile work environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986). Gross has not asserted that she was subjected to sexual harassment, in the form of "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." Id. (citations omitted). Therefore, there is only one issue on appeal: did the district court err in granting summary judgment because there is a genuine issue of material fact in dispute regarding whether Anderson's conduct and statements created a hostile work environment for Gross?


Burggraf is a road construction company. Most of Burggraf's employees are hired on a seasonal basis. The construction season generally runs from May to October of each year. Gross drove a water truck for Burggraf in 1989. Her employment was terminated on October 20, 1989.

Gross was hired again by Burggraf as a truck driver for the 1990 construction season. In mid-May, Gross was assigned to drive a water truck for the Jenny Lake Project in the Grand Teton National Park. Anderson was the supervisor of the Jenny Lake Project. He was responsible for supervising more than 100 individuals.

Gross was an hourly employee. She was subject to being released from work at any time that her services were no longer needed. Gross was initially paid $12.50 per hour for her work on the Jenny Lake Project. Toward the end of the summer, her salary was increased to $13.50 per hour. Gross worked more hours on the Jenny Lake Project than any other truck driver employed by Burggraf.

It is undisputed that Gross was laid off on October 2, 1990, because Burggraf no longer needed the services of a water truck driver on the Jenny Lake Project. Paving operations on the Jenny Lake project were commenced on September 10, 1990; the final paving was completed on October 3, 1990. As the paving operations began to wind down, the need for the water truck diminished. On September 30, 1990, Gross was sent home early because there was nothing for her to do. On October 2, 1990, Gross was informed that she was being laid off because the water truck was no longer needed for the Jenny Lake Project. The water truck was not used on the Jenny Lake Project after October 2, 1990.

On September 28, 1993, Gross filed this action against Burggraf and Anderson. In count one, Gross alleged that she was subjected to gender discrimination in violation of Title VII and retaliation because she contemplated filing a claim with the EEOC. In

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count two, she alleged a claim of wrongful termination in violation of state law.

Burggraf and Anderson moved for summary judgment regarding both claims. On April 28, 1994, the district court granted the defendants' motions for summary judgment based upon its determination that there were no genuine issues of material fact regarding either of Gross' claims. Burggraf also filed a motion to strike materials submitted by Gross in opposition to its motion for summary judgment. The district court denied the motion to strike.

Gross has timely appealed from the grant of summary judgment of her claim for violation of Title VII. She has not appealed from the grant of summary judgment of her wrongful discharge state law claim. Burggraf filed a timely cross-appeal from the denial of its motion to strike materials submitted in opposition to its motion for summary judgment.


  1. Jurisdiction

    As a threshold matter, we must determine whether Gross' appeal is properly before us. Gross maintains that we have jurisdiction over her appeal pursuant to 28 U.S.C. Sec. 1291 (1988). 2 Rule 58 of the Federal Rules of Civil Procedure provides, in pertinent part that "[e]very judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided for in Rule 79(a)." 3 It is undisputed that the district court did not enter a separate judgment in this action.

    Rule 58 applies when "there is uncertainty about whether a final judgment has [been] entered." Clough v. Rush, 959 F.2d 182, 185 (10th Cir.1992). In this case, there is no question regarding the finality of the district court's order. By granting Burggraf and Anderson's motions for summary judgment regarding each claim asserted by Gross, the district court disposed of the entire action. Therefore, the absence of a Rule 58 judgment does not prohibit our review of this matter. Kunkel v. Continental Cas. Co., 866 F.2d 1269, 1272 n. 3 (10th Cir.1989).

  2. Gross' Title VII Claim

    Gross alleged in her complaint that Burggraf "maintains a working environment that is hostile toward women and that is conducive to the overt harassment and discrimination suffered by [Gross] because of her sex." Gross contends that the following facts support her claim for gender discrimination: 1) Anderson referred to her as a "cunt"; 2) after Anderson was unable to elicit a response from Gross over the CB radio, he made the following statement to another Burggraf employee: "Mark, sometimes, don't you just want to smash a woman in the face?"; 3) on one occasion, as she left her truck, Anderson yelled at her: "What the hell are you doing? Get your ass back in the truck and don't you get out of it until I tell you."; 4) Anderson referred to Gross as "dumb" and used profanity in reference to her; 5) only two women out of the forty who worked under Anderson's supervision completed the 1990 construction season; 6) Anderson hired Gross solely to meet federal requirements against gender discrimination; 7) Anderson disliked women who were not between the ages of 19 and 25 and who weighed more than 115 pounds; 8) Anderson approached Gross after work one day and offered to buy her a case of beer if she would tell another Burggraf employee to "go fuck himself"; 9) Anderson warned Gross that if she ruined the transmission on her truck she would be fired; and 10) Anderson threatened to retaliate against Gross because he had heard that she was contemplating filing an EEOC claim.

    We must review a grant of summary judgment de novo. Doe v. Bagan, 41 F.3d 571, 573 (10th Cir.1994). In determining whether Gross presented sufficient admissible

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    vidence to demonstrate that there is a genuine issue of material fact in dispute, we must view the evidence in the light most favorable to Gross. Conaway v. Smith, 853 F.2d 789, 792 n. 4 (10th Cir.1988). Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

    Under Rule 56(c), the moving party has the initial responsibility to show that "there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). If this requirement is met by the moving party, the burden shifts to the nonmoving party to make a showing sufficient to establish that there is a genuine issue of material fact regarding "the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552. The nonmoving party may not rest upon "the mere allegations or denials of [his or her] pleading]...." Anderson v. Liberty Lobby, Inc., 477 U.S....

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