Purrington v. University of Utah, 91-4219

• Decision Date: 21 June 1993
• Docket Number: No. 91-4219,91-4219
• Parties: 62 Fair Empl.Prac.Cas. (BNA) 354, 62 Empl. Prac. Dec. P 42,517, 84 Ed. Law Rep. 81, 37 Fed. R. Evid. Serv. 1169 Beverly T. PURRINGTON, Plaintiff-Appellant, v. UNIVERSITY OF UTAH, Chase N. Peterson, James L. Clayton, Kay M. Coleman, Ramona Adams, Shauna Adix, in their representative capacities; Shauna Adix, individually, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1025

996 F.2d 1025

62 Fair Empl.Prac.Cas. (BNA) 354,

62 Empl. Prac. Dec. P 42,517, 84 Ed. Law Rep. 81,

37 Fed. R. Evid. Serv. 1169

Beverly T. PURRINGTON, Plaintiff-Appellant, v. UNIVERSITY OF UTAH, Chase N. Peterson, James L. Clayton, Kay M. Coleman, Ramona Adams, Shauna Adix, in their representative capacities; Shauna Adix individually, Defendants-Appellees.

No. 91-4219.

United States Court of Appeals Tenth Circuit.

June 21, 1993.

Elizabeth T. Dunning of Watkiss, Dunning & Watkiss, Salt Lake City, UT, for plaintiff-appellant.

Lois A. Baar (Francis M. Wikstrom and W. Mark Gavre of Parsons, Behle & Latimer, and Janet Hugie Smith of Ray, Quinney & Nebeker, attorney for Shauna Adix, with her on the brief), Salt Lake City, UT, for defendants-appellees.

Before TACHA and BARRETT, Circuit Judges, and BROWN ^*, District Judge.

BARRETT, Senior Circuit Judge.

In September, 1985, Beverly T. Purrington (Purrington) was hired by the University of Utah as the Program Coordinator at the Women's Resource Center (WRC), at which time Shauna Adix (Adix) served as the WRC Director. In March, 1986, Purrington contends that Adix began sexually harassing her. The harassment consisted of Adix frequently touching Purrington; pressing her body, namely her breasts, against Purrington; trapping Purrington in corners and against walls and obstructing passageways so that Purrington could not get by; standing close to and putting her arm around Purrington; and making sexually suggestive gestures and lewd and inappropriate sexual comments to Purrington and other women. (R., Appellant's Appendix, Vol. 1 at 371-73, 543-48).

Purrington objected, both orally and in writing, to Adix about this conduct. (R., Appellant's Appendix, Vol. 2 at 548, 562, 694, 918-20). Purrington also discussed the problem with others, including Kaye Coleman, Director of the University Office of Equal Opportunity (OEO); Norman Gibbons, Dean of Student Affairs and Services; Afesa Adams, Adix' immediate supervisor and University Associate Vice President; and James Clayton, University Provost. (R., Appellant's Appendix, Vol. 1 at 371-73; Vol. 2 at 536-39, 554-58, 628-30, 873, 918).

Adix left the WRC on May 31, 1988, to begin work at the School of Social Work. Purrington had no direct physical or interpersonal contact with Adix after that date. Following Adix' departure from WRC, Purrington cites two incidents as constituting part of a continuing sexual harassment in violation of Title VII. At the School of Social Work in the spring of 1989, Purrington witnessed Adix place her arm around a woman in a manner which Purrington found inappropriate. Second, Purrington was informed by a former WRC staff member that in the summer of 1989, Adix hugged the former staff member who was annoyed by such contact. Purrington did not witness this occurrence.

Purrington filed this action alleging sexual harassment through a hostile work environment and retaliation, both in violation of Title VII, Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. The district court granted summary judgment to all defendants on Purrington's hostile work environment claim, as the claim was untimely. The retaliation claim was tried to the court which ruled that Purrington failed to prove retaliation by any defendant.

On appeal, Purrington contends that the district court erred in: (1) granting summary judgment dismissing as untimely Purrington's hostile work environment claim, (2) refusing to shift the burden of proof to defendants on the retaliation claim, in accord with Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), (3) requiring that Purrington prove intent rather than causation on her retaliation claim, and (4) excluding testimony proffered by Purrington.

I. Timeliness of Hostile Work Environment Claim

The district court granted summary judgment dismissing Purrington's hostile work environment claim as untimely. This court reviews a grant of summary judgment de novo. "We apply the same legal standard used by the district court under Fed.R.Civ.P. 56(c) and examine the record to determine if any genuine issue of material fact was in dispute; if not, we determine if the substantive law was correctly applied." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).

In Utah, a plaintiff must file a Title VII discrimination charge within 240 days of the alleged discriminatory act. ¹ Purrington filed her charge on July 28, 1989. Thus, her claim is timely only with respect to discriminatory acts which occurred after November 30, 1988. The district court held that because Adix neither touched nor made comments to Purrington once Adix left the WRC on May 31, 1988, no hostile work environment existed after that date. Therefore, for Purrington's untimely claim of sexual harassment to survive, she must either prove that a continuing violation existed or establish equitable tolling.

A. Continuing Violation

"[A] hostile environment claim usually involves a continuing violation." Waltman v. International Paper Co., 875 F.2d 468, 476 (5th Cir.1989). To invoke the continuing violation exception to the Title VII charge-filing deadlines, Purrington must show either (1) a series of related acts taken against a single individual, one or more of which falls within the limitations period, or (2) the maintenance of a company-wide policy of discrimination both before and during the limitations period. Bruno v. Western Elec. Co., 829 F.2d 957, 961 (10th Cir.1987).

(1) Series of Related Acts

To prove a series of related acts, Purrington must show that the acts rise to the level of a "dogged pattern" of discrimination as distinguished from "isolated and sporadic outbreaks." Id. The evidence must "support[ ] a determination that the 'alleged discriminatory acts are related closely enough to constitute a continuing violation.' " Id. (citing Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir.1983)). "Courts have not formulated a clear standard for determining when alleged discriminatory acts are related closely enough to constitute a continuing violation and when they are merely discrete, isolated, and completed acts which must be regarded as individual violations." Berry, 715 F.2d at 981. The Berry court found three inquiries relevant, though not exhaustive: (1) whether the alleged acts involve the same type of violation, (2) whether the acts are recurring versus isolated; and perhaps most important, (3) whether the acts have the degree of permanence which should alert the employee to the duty to assert her rights. Id. Permanency depends on what the plaintiff knew or should have known at the time of the violation. In noting that acts of harassment which create a hostile environment generally have a lesser degree of permanence, the Fifth Circuit provided as an example that, "[i]f the person harassing a plaintiff leaves his job, the harassment ends...." Waltman, 875 F.2d at 476.

While Purrington asserted that she saw Adix engaged in inappropriate behavior on several occasions following Adix' departure from the WRC, only two incidents were identified with sufficient specificity and thereby referenced by the district court:

In the spring of 1989, while at the School of Social Work Building on WRC business, plaintiff witnessed Adix place her arm around a woman in a manner similar to the way Adix touched women at the WRC.

In the summer of 1989, while serving as a facilitator during a workshop at the Graduate School of Social Work, Adix hugged a former WRC staff member in a way the former staff member believed was sexual in nature. Plaintiff did not witness this event; rather, she was told about it by the former staff member.

(R., Appellant's Appendix, Vol. 1 at 258-59).

The district court held that the two incidents were too sporadic to constitute a hostile work environment and were removed from Purrington's work place, which the court limited to the WRC.

"[O]ne of the critical inquiries in a hostile environment claim must be the environment. Evidence of a general work atmosphere therefore--as well as evidence of specific hostility directed toward the plaintiff--is an important factor in evaluating the claim." Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir.1987). "[I]ncidents involving employees other than the plaintiff are relevant in establishing a generally hostile work environment." Id. at 1416.

While we recognize that the two incidents occurring after May 31, 1988 are relevant in establishing a hostile work environment and that Purrington's workplace arguably extends beyond the WRC, we believe that the incidents in question are of an infrequent, isolated, and discrete nature. We agree with the Fifth Circuit Court's example that when "the person harassing a plaintiff leaves [her] job, the harassment ends...." Waltman, 875 F.2d at 476.

The district court indicated that "[o]bserving one act of alleged harassment, and hearing about another, both of which occurred about a year after the alleged harassment of plaintiff ceased, does not rise to the level of a 'dogged pattern' of discrimination." (R., Appellees' Supplemental Appendix at 35-36). We agree. The two incidents Purrington cites are not related closely enough to evidence a dogged pattern of discrimination and thereby constitute a continuing violation.

(2) Company-wide Policy of Discrimination

Alternatively, a continuing violation may be established with evidence of a "pervasive, institutionalized 'system' of discrimination," Elliott v. Sperry Rand Co., 79 F.R.D. 580, 585-86 (D.Minn.1978), which typically involves discrimination through an employer's policies or practices. "A refusal to rectify a discriminatory practice or a repetition of the practice itself can render the act a continuing violation of civil rights." Ligon v. Frito-Lay, Inc., 82 F.R.D. 42, 48 (N.D.Tex.1979); Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir.1973).

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