Morris v. City of Colorado Springs

Decision Date18 January 2012
Docket NumberNo. 10–1572.,10–1572.
Citation666 F.3d 654,114 Fair Empl.Prac.Cas. (BNA) 225,33 IER Cases 485
PartiesSonja MORRIS, Plaintiff–Appellant, v. CITY OF COLORADO SPRINGS, d/b/a Memorial Health System, Defendant–Appellee.
CourtU.S. Court of Appeals — Tenth Circuit


Ian D. Kalmanowitz, of Cornish & Dell'Olio, Colorado Springs, CO, for PlaintiffAppellant.

Edward J. Butler (Raymond M. Deeny with him on the brief), of Sherman & Howard, L.L.C., Colorado Springs, CO, for DefendantAppellee.

Before O'BRIEN, GILMAN *, and HOLMES, Circuit Judges.HOLMES, Circuit Judge.

PlaintiffAppellant Sonja Morris appeals from the district court's orders granting judgment on the pleadings on her First Amendment retaliation claim brought under 42 U.S.C. § 1983, and summary judgment on her claim for sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e–17, in favor of DefendantAppellee City of Colorado Springs. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the judgment of the district court.


The following facts are largely undisputed.1 Sonja Morris is a registered nurse who works for the Memorial Health System (Memorial), an enterprise maintained by the City of Colorado Springs. She has been employed with Memorial continuously since January 2000. In November 2006, Ms. Morris joined Memorial's perioperative program, where she assisted with all types of surgeries except those involving the heart. Subsequently, in 2007, she joined the “Heart Team,” which is a group of Memorial employees assigned to perform all heart surgeries done at the hospital.

Dr. Bryan Mahan is a surgeon on Memorial's Heart Team. During the time Ms. Morris was on the Heart Team with Dr. Mahan, she contends that he harassed her on multiple occasions. Specifically, she alleges that he made a number of demeaning comments to her. More generally, she claims that Dr. Mahan would treat female employees differently than male employees.

In June 2008, Dr. Mahan hit Ms. Morris on the head by “flicking her with his finger without her permission.” Aplt.App. at 305 (Dist. Ct. Order, filed Nov. 19, 2010). Ms. Morris claims that he also hit her on the head in a similar fashion without permission a couple of weeks later.

Another incident occurred in August 2008—on the Friday before Labor Day weekend—when Ms. Morris was assisting Dr. Mahan with a pericardiectomy. 2 After Dr. Mahan surgically removed pericardium tissue from the patient on the operating table, he threw it in Ms. Morris's direction. Dr. Mahan claims that he intended only to throw the tissue on the floor behind him. Nonetheless, the tissue hit Ms. Morris's leg, prompting Dr. Mahan to say, “Oh shit, I hit her.” Aplee. Br. at 6. He then joked about completing “cultures” on the tissue. When the incident occurred, Ms. Morris was wearing only scrubs—i.e., “the basic blue nursing uniform that is worn throughout the hospital by nurses.” Aplt.App. at 216 (Tr. of Dep. of Sonja Morris, taken Jan. 8, 2010). She was not wearing “reinforced” protective gear such that “if it is soiled with body fluids,” there would be “less risk of soaking through” the clothing. Id. Although Ms. Morris did not deny having blood on her scrubs before, id. at 133, she noted that it was “not a common occurrence” for her to have “blood or other bodily fluids come into contact with [her] clothing” when she was not wearing protective gear, id. at 216. However, Ms. Morris remained in the surgical suite until the procedure was finished without changing clothes.

A few days later, Ms. Morris reported the pericardium incident to Maria Pluemer, the director of surgery and Ms. Morris's supervisor during her tenure on the Heart Team. Ms. Pluemer then reported the incident to Memorial's head of human resources, Carlene Crall, who spoke with Ms. Morris about this incident and her other allegations of harassment. Ms. Crall investigated Ms. Morris's allegations by interviewing Dr. Mahan and other employees who were present in the operating room during the pericardium incident.

Ms. Crall also reported Ms. Morris's allegations to Dr. Lawrence McEvoy, Memorial's Chief Executive Officer, and Dr. Daniel Balch, Memorial's Chief of Staff. In response, on September 11, 2008, Doctors Balch and McEvoy transmitted a confidential memorandum to all members of the Heart Team, alerting them first that Dr. Mahan would not be in the operating room until further notice, and also that all members of the Heart Team would participate in a “team building program led by an outside professional.” Id. at 306. Both Dr. Mahan and Ms. Morris participated in the training and worked together for roughly three months thereafter.

Then, on December 10, 2008, Ms. Morris submitted a Notice of Claim on Memorial. The notice stated that she had suffered damages as a result of the pericardium incident, and would pursue claims against the City of Colorado Springs and Dr. Mahan for “various torts, including ... outrageous conduct and battery.” Id. at 40 (Notice of Claim, dated Dec. 10, 2008). A week later, Ms. Crall sent Ms. Morris a letter recognizing the filing of the notice, and stating that Ms. Morris would be removed from the Heart Team and assigned to the main operating room because of Memorial's “obligation to place [her] in a work environment that is comfortable.” Id. at 168 (Ltr. from Carlene B. Crall to Sonja Morris, dated Dec. 17, 2008).

On June 26, 2009, Ms. Morris filed suit against Memorial in federal district court, advancing a claim that her First Amendment right to petition was violated when she was removed from the Heart Team for submitting the Notice of Claim on Memorial and Dr. Mahan. She also asserted a claim under Title VII alleging that Dr. Mahan engaged in unlawful gender-based harassment and created an abusive and hostile working environment.

The district court granted Memorial's motion for judgment on the pleadings as to Ms. Morris's First Amendment claim, on the ground that the notice did not contain speech on a matter of public concern as determined under the balancing approach derived from Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), and Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Subsequently, after permitting time for discovery, the district court granted Memorial's motion for summary judgment on Ms. Morris's Title VII claim, on the ground that she could not establish that the alleged harassment was based on her gender or that it was sufficiently “severe” or “pervasive” to affect her working environment. Ms. Morris now appeals the district court's dismissal of both of her claims.


Ms. Morris's first claim was dismissed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, and her second was dismissed on summary judgment. We review a dismissal granted under Rule 12(c) ‘under the standard of review applicable to a Rule 12(b)(6) motion to dismiss,’ Nelson v. State Farm Mut. Auto. Ins. Co., 419 F.3d 1117, 1119 (10th Cir.2005) (quoting McHenry v. Utah Valley Hosp., 927 F.2d 1125, 1126 (10th Cir.1991)), and [u]nder that standard, we review the motion de novo, accepting factual allegations as true and considering them in the light most favorable to the plaintiff,” Tomlinson v. El Paso Corp., 653 F.3d 1281, 1285–86 (10th Cir.2011).

In addition, [w]e review a district court's grant of summary judgment de novo, applying the same standard as the district court.” Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir.2011). Namely, summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In conducting the analysis, we “view[ ] all facts [and evidence] in the light most favorable to the party opposing summary judgment.” Grynberg v. Total, S.A., 538 F.3d 1336, 1346 (10th Cir.2008).


The district court dismissed both of Ms. Morris's claims. On appeal, she contends that she properly stated a claim under 42 U.S.C. § 1983 in that the substance of her notice was protected by the First Amendment. She also contends that genuine disputes of material fact precluded summary judgment on her Title VII hostile work environment claim. We address both issues in turn.

A. First Amendment Retaliation Claim

Ms. Morris first argues that her First Amendment rights were violated when she was removed from the Heart Team shortly after filing her Notice of Claim on Memorial. As the precedent of the Supreme Court and our court makes clear, [a] government employer ‘cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression [under the First Amendment].’ Burns v. Bd. of Cnty. Comm'rs of Jackson Cnty., 330 F.3d 1275, 1285 (10th Cir.2003) (quoting Lytle v. City of Haysville, 138 F.3d 857, 863 (10th Cir.1998)); see Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ([A] state cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression.”); Martin v. City of Del City, 179 F.3d 882, 886 (10th Cir.1999) (“Public employees do not surrender their First Amendment rights by virtue of their employment with the government.”). [T]he First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti, 547 U.S. at 417, 126 S.Ct. 1951. This protection extends to the right “to petition the Government for a redress of grievances.” U.S. Const. amend. I; see Borough of Duryea v. Guarnieri, ––– U.S. ––––, 131 S.Ct. 2488, 2495, 180 L.Ed.2d 408 (2011) (“The considerations that shape the application of the Speech Clause to public employees apply with equal force to claims by those employees under the Petition Clause.”); see also Merrifield v....

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