Dick v. Phone Directories Co., Inc., No. 03-4163.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Tacha
• Citation: 397 F.3d 1256
• Parties: Diane D. DICK, Plaintiff-Appellant, v. PHONE DIRECTORIES COMPANY, INC., Defendant-Appellee.
• Docket Number: No. 03-4163.
• Decision Date: 11 February 2005

397 F.3d 1256 Diane D. DICK, Plaintiff-Appellant,
v.
PHONE DIRECTORIES COMPANY, INC., Defendant-Appellee. No. 03-4163. United States Court of Appeals, Tenth Circuit. February 11, 2005.

Page 1257

COPYRIGHT MATERIAL OMITTED

Page 1258

COPYRIGHT MATERIAL OMITTED

Page 1259

COPYRIGHT MATERIAL OMITTED

Page 1260

Mark C. McLachlan (Kenneth B. Grimes, with him on the briefs), Mark C. McLachlan & Assoc., LC, Salt Lake City, Utah, appearing for Plaintiff-Appellant.

Matthew M. Durham (Justin B. Palmer, with him on the brief), Stoel Rives LLP, Salt Lake City, Utah, appearing for Defendant-Appellee.

Before TACHA, Chief Circuit Judge, BALDOCK, and HENRY, Circuit Judges.

TACHA, Chief Circuit Judge.

Plaintiff-Appellant Diane D. Dick sued her employer, Defendant-Appellee Phone Directories Company, Inc. ("PDC"), alleging hostile work environment same-sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964. The District Court granted summary judgment in favor of PDC on all claims, reasoning that Ms. Dick was not discriminated against "because of sex" and that she had not suffered an adverse employment action. On appeal, Ms. Dick argues that there is a genuine issue of material fact regarding whether she was harassed because of her sex and whether the actions of her supervisor and her coworkers constitutes an adverse employment action. We take jurisdiction under 28 U.S.C. § 1291, AFFIRM in part, and REVERSE in part.

I. BACKGROUND

In 1997, Ms. Dick began working as one of approximately eight sales representatives in PDC's Vernal, Utah office. She quickly became a top representative in Utah, earning various awards and trips for her sales. Sometime in 2000, Ms. Dick's direct supervisor was fired. Subsequently, Ms. Dick began to use her former supervisor's office, which apparently angered at least one coworker. In September 2000, PDC hired Laura Bills as the Vernal office manager and Ms. Dick's immediate supervisor. Ms. Dick alleges that Ms. Bills and her coworkers began to sexually harass her the following month, and that the conduct lasted until about May 2001. Nonetheless, Ms. Dick continued to be a successful sales representative and, at the time of this appeal, was still employed at PDC's Vernal office.

Ms. Dick describes the alleged harassment in terms of "a working environment permeated by sexually explicit banter, insults, lewd jokes, gestures, games, and devices." Dick v. Phone Directories Company, Inc., 265 F.Supp.2d 1274, 1275 (D.Utah 2003). PDC's Vernal office consists primarily of women; only two men worked there during the relevant time period. Three female coworkers and Ms. Bills took part in the conduct. Camie Hinkle, a coworker with no supervisory authority over Ms. Dick, appears to have taken the most prominent role in the harassment, so we begin with Ms. Dick's allegations about her conduct.¹

Page 1261

Ms. Hinkle would approach Ms. Bills and another coworker from behind and make sexual gestures with her body toward them, although whether this involved physical contact is unclear. At one point, she put her foot in Ms. Bills' lap and said, "Yo, buff b*tch. How does that feel? Yo, buff b*tch. You like that." On other occasions, she would pinch Ms. Bills' breast and buttocks. She also is alleged to have hung a replica of a penis from the ceiling and to have brought a pillow to the office that she would kneel on while referring to oral sex with a man. The only behavior Ms. Hinkle specifically directed toward Ms. Dick, however, appears to be that twice Ms. Hinkle attempted to pinch Ms. Dick's breasts but Ms. Dick told her to get away from her, and that once at a novelty shop over the lunch hour Ms. Hinkle shoved a sex toy in the shape of a penis toward Ms. Dick.

The other alleged harassers are Ms. Bills, Dee Coleman, and Andrea Snow. Ms. Dick alleges that Ms. Bills often would tell coworkers "f*ck you" and should have taken greater steps to stop the harassing conduct of the other women in the office. Ms. Coleman often would point to Ms. Dick's collection of stuffed cats on her desk and say that Ms. Dick had a "pussy." Ms. Coleman also would kneel on the pillow brought by Ms. Hinkle and make similar references to oral sex. Ms. Snow would bend over her desk while she was not wearing underwear, also used the pillow while making oral sex references, and questioned Ms. Dick about a sex toy apparently used by lesbians. Ms. Dick also alleges that she was often called "Ivanna Dick" and "Granny Dick," that some of the women would simulate sex with a stuffed bear, and that vulgar rap music was often played in the office.

Ms. Dick also makes many separate allegations regarding the sexual orientation of the above women, but most of them constitute inadmissible hearsay which we address below. She properly alleges, however, that the office bulletin board was decorated in rainbow colors — which symbolizes gay pride — and that she witnessed Ms. Bills and an openly gay coworker, Teena Northern, lock themselves into various rooms at the office for extended periods of time. Ms. Dick's granddaughter often babysat for Ms. Northern's children, but after learning that Ms. Northern was homosexual, Ms. Dick testified that "I wasn't upset that [PDC] hired a lesbian. I was upset that nobody told me so that I could make a decision about my granddaughter."

In November and December 2000, Ms. Dick complained to Ms. Bills about the office environment. Ms. Bills allegedly said, "[t]his is going to be a fun office" and ignored her complaints. Subsequently, Ms. Dick claims that Ms. Bills and her coworkers retaliated against her. These acts of retaliation are not specifically enumerated but appear to include increased hostility by coworkers, being "written up" by Ms. Bills over a disagreement with a coworker, and the circulation of an office memo instructing employees to refrain from using "foul language," "personal gestures," and being "loud and obnoxious." Moreover, at one point, Ms. Dick alleges that Ms. Bills threatened to fire her if she complained to Ms. Bills' supervisor, Jason Davis. This threat was never carried out.

Then, in March 2001, Ms. Dick filed a charge of discrimination with the Utah Anti-Discrimination Division. The following month, Ms. Dick, Ms. Hinkle, and Ms. Coleman had a dispute outside the office. Ms. Dick, who lives across the street from Ms. Hinkle, saw Ms. Coleman's car pull into Ms. Hinkle's driveway. Because Ms. Coleman and Ms. Hinkle were not friends, Ms. Dick thought the two women were meeting together to talk about her. The

Page 1262

next day, at seven in the morning, Ms. Dick went inside Ms. Coleman's home and confronted her. Ms. Coleman was angry with Ms. Dick for being in her home and later allegedly sent her the following unsigned e-mail:

As far as I'm concerned where I go is my business and how long im [sic] there is my business, and I don't ever want to see u[sic] driving by my house watching me and don't ever walk into my home again! ... No one hates you or is trying to get you fired, we don't understand whats goin thru [sic] your head. But anyway, this all stops here ... don't try to pull anymore sh*t, we are not going to put up with it, we are a team and we must all get along.

After receiving the e-mail, Ms. Dick phoned the home of another coworker, Dee Dee York, but did not reach her. Ms. Dick then phoned Ms. York's mother's home but was still unable to contact Ms. York. Ms. York and Ms. Coleman then complained to Mr. Davis about Ms. Dick's conduct. He told them that the issue was not within his "jurisdiction" and that they should call "who they felt would help them." It is unclear whether Mr. Davis instructed the women to contact the police, but the women did do so. Thereafter, a police report was filed, but no charges were brought against Ms. Dick.

Ms. Dick filed this complaint against PDC in October 2001, alleging Title VII claims for hostile work environment same-sex discrimination, see 42 U.S.C. § 2000e-2, and retaliation, see 42 U.S.C. § 2000e-3, and for negligent employment of harassers under state law, see Retherford v. AT & T Communications of Mountain States, Inc., 844 P.2d 949, 967 (Utah 1992). The District Court granted summary judgment in favor of PDC on both Title VII claims. In dismissing the hostile work environment claim, the court held that Ms. Dick had not shown that the harassment was because of her sex. As to her retaliation claim, the court held that Ms. Dick had not shown an adverse employment action. It then refused to exercise supplemental jurisdiction over the negligent employment claim. See 28 U.S.C. § 1367(c)(3). Ms. Dick now timely appeals the District Court's order granting summary judgment on her hostile work environment and retaliation claims.²

II. STANDARD OF REVIEW

We review the District Court's "grant of summary judgment de novo, applying the same standards used by the district court." Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir.1998). 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." Fed.R.Civ.P. 56(c). We view the evidence, and draw reasonable inferences therefrom, in the light most favorable to the nonmoving party. Byers, 150 F.3d at 1274.

III. DISCUSSION

A. Hostile Work Environment

Title VII prohibits an employer from "discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's... sex." 42 U.S.C. § 2000e-2(a)(1). This statutory provision prohibits subjecting an employee to a hostile work environment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). "To establish a sexually hostile

Page 1263

work environment existed, a plaintiff must...