Hirase-Doi v. U.S. West Communications, Inc., HIRASE-DO

Decision Date28 July 1995
Docket NumberP,HIRASE-DO,No. 93-4188,93-4188
Citation61 F.3d 777
Parties69 Fair Empl.Prac.Cas. (BNA) 1745 Kimlaintiff-Appellant, v. U.S. WEST COMMUNICATIONS, INC., Defendant-Appellee, and Kenneth Coleman, Defendant.
CourtU.S. Court of Appeals — Tenth Circuit

Thomas R. Karrenberg of Anderson & Karrenberg, Salt Lake City, UT (Linda M. Jones, with him on the brief), for plaintiff-appellant.

Floyd A. Jensen, Salt Lake City, UT (Janet Hugie Smith and Lisa A. Yerkovich of Ray, Quinney & Nebeker, with him on the brief), for defendant-appellee.

Before SEYMOUR, Chief Judge, LOGAN, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

This case is before us on appeal of the district court's order granting summary judgment against Plaintiff Kim Hirase-Doi ("Doi") on all of her claims against Defendant U.S. West Communications, Inc. ("US West"). Doi brought suit against US West alleging hostile work environment sexual harassment in violation of Title VII, as well as state common law tort claims. The district court entered a final judgment with respect to these claims pursuant to Fed.R.Civ.P. 54(b), and Doi filed a timely notice of appeal. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291, affirm the grant of summary judgment for US West on Doi's state law claims, reverse the district court's dismissal of Doi's Title VII claim, and remand for further proceedings.

I. BACKGROUND

Doi began working for US West as a directory assistance operator in 1982. At the time of the events related to this complaint against US West, she worked as a "relieving service assistant," a job in which she sometimes assisted less experienced operators. Doi was a member of the Communications Workers of America, the labor union responsible for the collective bargaining agreement under which she was employed.

On April 15, 1991, US West hired Kenneth Coleman ("Coleman") as a directory assistance operator at its Operator Service Center in Midvale, Utah. Doi alleges that during Coleman's employment at US West from April 15 to July 15, 1991, he sexually harassed the female employees around him on numerous occasions, culminating in an assault on Doi on July 13. 1

During Coleman's training sessions in his first week at US West, he made sexually offensive remarks to Rebekah MacKinnon ("MacKinnon") and Amy Gee ("Gee"), two women who were also participating in the training. His remarks included persistent requests for sex and inquiries of their sexual conduct. He also reportedly made open-ended invitations to all female employees to satisfy his sexual desires. The training supervisor informed Coleman that his conduct was inappropriate and could be construed as sexual harassment. Despite this warning, Coleman continued to make sexually offensive comments and overtures to MacKinnon and Gee. Again, the training supervisor advised Coleman to refrain from such conduct, but his continued sexual overtures and innuendos caused the supervisor to conclude that Coleman had not taken her warnings seriously.

On May 16, after a continuation of Coleman's unwelcome sexual comments and solicitations, MacKinnon and Gee reported Coleman's conduct to their manager, Cheryl Westwood (the "Manager"), at US West. They also reported that a third woman was being harassed by Coleman, but had chosen not to come forward. In response to the reports, the Manager met with Coleman and, later, with Coleman, MacKinnon, and Gee. The Manager warned Coleman that any further harassment could result in discipline up to and including dismissal.

Some time after the meeting with Coleman and the Manager, MacKinnon and Gee independently reported to the Manager that Coleman was subjecting them to threatening and intimidating stares. In Gee's case, the Manager asked Coleman to stop, while in MacKinnon's case, the Manager simply told MacKinnon that she should expect that from Coleman. During this same time period, the training supervisor also reported her earlier reprimands of Coleman to the Manager, and the training supervisor advised the Manager that Coleman made sexual statements and solicited sexual invitations to all female employees with whom he came in contact. On May 17, the Manager herself disclosed to two other employees, who were also union representatives, that Coleman had made sexually offensive remarks to her.

During May, June, and early July, Coleman continued to work as a directory assistance operator in an unsupervised area and engaged in sexually offensive behavior towards numerous other women in the area. Coleman subjected Lisa Jo Valdez ("Valdez") to comments, winking and staring with possible sexual overtones, and Valdez reported the behavior to her union representative, in accordance with a written US West policy for reporting such conduct. Coleman frequently propositioned Rita Branch Davis ("Davis"). Davis asked Coleman to stop, but apparently did not report his behavior to US West management. Coleman passed a sexually explicit note to Jamie Sharp, who immediately threw the note away and left the area, but did not report the incident to US West management. Coleman approached Cheryl Casper ("Casper") in her cubicle where he attempted to kiss her on the neck and brushed her breast with his hand. Casper told Doi of the incident, but did not report it to US West management. Coleman made sexually suggestive comments to Heather Case, who simply avoided Coleman after the incident, but did not report it to US West management. Coleman made sexually suggestive comments to Lorraine Tanner, who also failed to report Coleman's behavior to US West.

Coleman also engaged in sexually offensive behavior towards Doi during this time period, including making verbal and written sexually offensive remarks propositioning her and attempting to touch her breast. In addition, Doi observed Coleman approaching and flirting with numerous other female employees. Doi reported Coleman's behavior to Gail Metcalf ("Metcalf"), a union vice-president, in accordance with US West policy, at some time prior to July 13, 1991. Then, on July 13, Coleman grabbed Doi between her legs. Doi reported the incident on July 15, after which Coleman was promptly suspended and immediately resigned. Doi brought this action against US West for hostile work environment sexual harassment in violation of Title VII, along with state claims for failure to supervise and intentional infliction of emotional distress. The district court granted summary judgment to US West and dismissed all of Doi's claims.

II. DISCUSSION

We review the grant or denial of summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c). Universal, 22 F.3d at 1529; Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). "Summary judgment is appropriate '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.' " Universal, 22 F.3d at 1529 (quoting Fed.R.Civ.P. 56(c)). "When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment." Applied Genetics, 912 F.2d at 1241. If there is no genuine issue of material fact in dispute, then we next determine if the substantive law was correctly applied by the district court. Id.

A. Hostile Work Environment Sexual Harassment

In granting summary judgment to US West on Doi's Title VII claim, the district court found that Coleman was a non-management, non-supervisory co-worker of Doi who was not acting within the scope of his employment when he committed the alleged acts of harassment. Therefore, the district court held, US West could only be liable if it was negligent or reckless in failing to remedy or prevent a hostile work environment of which management level employees knew or in the exercise of reasonable care should have known. See Hirschfeld v. New Mexico Corrections Dep't., 916 F.2d 572, 576-77 (10th Cir.1990). The court then found that Doi had produced no viable evidence that US West knew or should have known of any behavior by Coleman sufficient to establish US West's liability to Doi and further found the evidence undisputed that when US West did become aware of Coleman's behavior, it took prompt and appropriate remedial action. It is on these findings that Doi bases her appeal, arguing that there are genuine issues of material fact as to whether US West knew or should have known of Coleman's behavior and negligently failed to take appropriate action to remedy or prevent that behavior.

1. The Existence of a Hostile Work Environment at US West

The district court did not address the predicate issue of whether a hostile work environment existed at US West as a result of Coleman's actions. However, US West has raised this issue and denied the existence of a hostile work environment--apparently as an alternative basis for affirmance of the district court decision--and consequently we address it herein.

A plaintiff may prove the existence of hostile work environment sexual harassment in violation of Title VII "where '[sexual] conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.' " Hirschfeld, 916 F.2d at 575 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d 49 (1986)). "For sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.' " Id. (quoting Meritor, 477 U.S. at 67, 106 S.Ct. at 2405).

US West argues that Doi cannot solely rely on Coleman's harassment of other workers to establish a hostile work environment for herself. However, we...

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