Riske v. King Soopers

• Decision Date: 22 April 2004
• Docket Number: No. 02-1439.,No. 02-1378.,02-1378.,02-1439.
• Parties: Ann Marie RISKE, Plaintiff-Appellant, v. KING SOOPERS, a subsidiary of Kroger; Steven Katzenberger; and Robert Jackiewicz, Defendants-Appellees. Ann Marie Riske, Plaintiff-Appellee, v. King Soopers, a subsidiary of Kroger, Defendant-Appellant, and Steven Katzenberger and Robert Jackiewicz, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

366 F.3d 1085

Ann Marie RISKE, Plaintiff-Appellant, v. KING SOOPERS, a subsidiary of Kroger; Steven Katzenberger; and Robert Jackiewicz, Defendants-Appellees.

Ann Marie Riske, Plaintiff-Appellee, v. King Soopers, a subsidiary of Kroger, Defendant-Appellant, and Steven Katzenberger and Robert Jackiewicz, Defendants.

No. 02-1378.

No. 02-1439.

United States Court of Appeals, Tenth Circuit.

April 22, 2004.

COPYRIGHT MATERIAL OMITTED

Patricia S. Bangert of Powers Phillips, P.C., Denver, CO, for Plaintiff-Appellant/Cross-Appellee.

Raymond M. Deeny (N. Dawn Weber with him on the briefs) of Sherman & Howard L.L.C., Colorado Springs, CO, for Defendants-Appellees/Cross-Appellants.

Before SEYMOUR, McKAY, and McCONNELL, Circuit Judges.

McKAY, Circuit Judge.

Appellant Riske brought this employment discrimination case against Appellee King Soopers for sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1962, 42 U.S.C. § 2000e, and against two individual employees for extreme and outrageous conduct. After Ms. Riske presented her evidence to a jury, the district court granted judgment as a matter of law for King Soopers on the retaliation claim and for the individual employees on the outrageous conduct claim. The jury found in favor of Ms. Riske on the remaining sexual harassment claim. King Soopers made a post-verdict motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b), and the district court denied the motion. Both parties appeal.

Background

We are asked to review both the district court's dismissal of the outrageous conduct claim against Mr. Katzenberger¹ pursuant to Fed.R.Civ.P. 50(a) and the district court's denial of King Soopers' motion for judgment as a matter of law on the sexual harassment claim pursuant to Fed.R.Civ.P. 50(b). In both instances, we view the facts in the light most favorable to Ms. Riske as the non-moving party. See Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1186 (10th Cir.1999) (Rule 50(a) motions); Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1268 (10th Cir.2000) (Rule 50(b) motions).

Ms. Riske worked at King Soopers for about twenty years and was a bakery manager for about twelve of those years. Aplt.App., Vol. II, at 160-61. Her allegations of outrageous conduct and sexual harassment began in 1997, when on two occasions she received an anonymous rose at work. Id. at 231-33. In 1998, on Valentine's Day, Riske received two more flowers at work, this time with a card signed "Neena." Id. at 233. Ms. Riske did not know anyone named "Neena" and wondered who had sent the flowers. Id. at 233-35. In April of 1998, she "received another flower with the name Neena signed on the card." Id. at 235.

In June of 1998, Ms. Riske received yet another flower delivery from a "Nina" with a message saying, "Being manager is hard [b]ut I hope I look as nice as you when I'm [b]itching." Aplt.App., Vol. V, at 1136. At trial, when asked about receiving these flowers, Ms. Riske testified that "it didn't make me feel very good. I didn't know who this person was [and] I had no idea what was happening." Aplt.App., Vol. II, at 241. Ms. Riske called the phone number on the form accompanying the June flowers, but it was disconnected. Id. Sometime in the summer of 1998, Ms. Riske received another flower at the bakery counter with an unsigned card asking why she was mad. Id. at 241-43.

In late August of 1998, Ms. Riske received more flowers with a message reading, "Sorry that the flowers & card upset you. I heard." Aplt.App., Vol. V, at 1137. At this point, Ms. Riske "was getting pretty angry because ... it felt like somebody had been watching" her. Aplt.App., Vol. II, at 249. In October of 1998, Ms. Riske received a flower with a card from "Neena" that said, "I am moving to love-land, come and see me in love-land[.] I am going to miss ... you in your tight-ass jeans." Id. at 249-51. She testified that she was upset but was also relieved that the notes and flowers may stop coming. Id. However, later that month, when another anonymous single flower was delivered, Ms. Riske testified that she felt frustrated, angry, and scared. Id. at 251-53.

In December of 1998, Ms. Riske received a gingerbread house at the bakery with a card signed "Neena." Id. at 253-55. She was upset and threw it away. Aplt.App., Vol. II, at 255. In January of 1999, Ms. Riske received a letter at the bakery counter saying, "This is killing me, I have to say bye. I hope you are loved in your life as much as I have loved you in the past three years. I am sorry for all this. Neena." Id. at 255-59. She was upset and still had no idea who "Neena" was. Id. at 259. In the summer of 1999, Ms. Riske hired a private detective. Id. at 263. Ms. Riske testified that during that summer and fall, Mr. Katzenberger, her manager at the time, stalked her, followed her around the store, and was "whistling in a taunting manner." Id. at 281. Ms. Riske asked Mr. Katzenberger more than ten times why he was watching her and following her around. Aplt.App., Vol. V, at 1049-51. In December of 1999, Ms. Riske reported Mr. Katzenberger's conduct to King Soopers' management. Aplt.App., Vol. II, at 331-32. On January 17, 2000, King Soopers told Ms. Riske that it had finished investigating her claims, and they transferred her to another store the next day. Id. at 377. On January 19, 2000, Mr. Katzenberger admitted to Ms. Riske that he and his co-worker had been sending the notes and flowers under the name "Neena." Id. at 291-97.

Ms. Riske testified that from 1997 to 2000 these incidents caused her physical and emotional harm, including headaches, weight loss, loss of concentration, paranoia, and a loss of enjoyment in her life. Id. at 420-25. Three co-workers testified that they noticed changes in Ms. Riske, including that she became more uptight and upset, lost a significant amount of weight, and became more withdrawn. Aplt.App., Vol. IV, at 879-80, 892; Aplt.App., Vol. V, at 1131. Mr. Katzenberger also noticed that Ms. Riske became "very withdrawn and angry" during the fall of 1999. Aplt.App., Vol. V, at 961. Ms. Riske started seeing a psychiatrist in November of 2000 for depression. Aplt.App., Vol. IV, at 908-10. Her psychiatrist testified that Ms. Riske's psychological problems were caused by the events she complained of while working at King Soopers. Id. at 924.

In addition to these facts, the district court found that other evidence was not relevant to Ms. Riske's claims because it could not be attributed to any defendant. Since Ms. Riske has not argued that the district court erred in finding this other evidence irrelevant, we will not consider this additional evidence on appeal.

Discussion

We first review the district court's judgment as a matter of law in favor of Mr. Katzenberger on the outrageous conduct claim. We review this dismissal de novo and apply the same standards as the district court. See Thompson v. State Farm Fire and Cas. Co., 34 F.3d 932, 941 (10th Cir.1994). That is, we affirm the district court if "there is no legally sufficient evidentiary basis for a reasonable jury to find for" Ms. Riske on the outrageous conduct claim. Fed.R.Civ.P. 50(a)(1). Dismissal under Rule 50(a) is proper "only if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party's position." Davis v. United States Postal Serv., 142 F.3d 1334, 1339 (10th Cir.1998) (internal quotation omitted).

In Colorado, "[t]he elements of outrageous conduct are: (1) the defendant(s) engaged in extreme and outrageous conduct, (2) recklessly or with the intent of causing the plaintiff severe emotional distress, and (3) causing the plaintiff severe emotional distress." Archer v. Farmer Bros. Co., 70 P.3d 495, 499 (Colo.Ct.App.2002) (citing McCarty v. Kaiser-Hill Co., LLC, 15 P.3d 1122, 1126 (Colo.Ct.App.2000)). The first element, extreme and outrageous conduct, is satisfied if the conduct goes "`beyond all possible bounds of decency, and [is] regarded as atrocious, and utterly intolerable in a civilized community.'" Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753, 756 (1970) (citing Restatement (Second) of Torts § 46 (1965)); see also Churchey v. Adolph Coors Co., 759 P.2d 1336, 1350 (Colo.1988). The court views the totality of the circumstances in determining whether the conduct at issue is extreme and outrageous. Kirk v. Smith, 674 F.Supp. 803, 811 (D.Colo.1987); Spulak v. K Mart Corp., 664 F.Supp. 1395, 1397 (D.Colo.1985). "The question of whether certain conduct is sufficiently outrageous is ordinarily a question for the jury." Meiter v. Cavanaugh, 40 Colo.App. 454, 580 P.2d 399, 401 (1978). "But it is for the court to determine in the first instance, whether reasonable men could differ on the outrageousness issue." Id.

Although this case presents a close question, we conclude that the conduct here comes so close to the bounds of decency that reasonable people could disagree about whether it constitutes actionable conduct. In so holding, we acknowledge that much of the conduct at issue here, when viewed as individual events, would not be sufficient to submit to a jury. However, considering the length of time involved and the managerial relationship between Ms. Riske and Mr. Katzenberger, a jury could find that the conduct became a pattern of harassment specifically designed to cause Ms. Riske emotional distress. Colorado courts have recognized that when conduct might be considered a pattern of harassment that extends over a considerable period time, it should be left "for the jury to determine whether the conduct of defendants was extreme and outrageous." Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753, 756 (1970) (creditor's repeated acts of harassing plaintiff with phone calls, letters and demands were enough to submit outrageous conduct claim to the jury); see also Mass v. Martin Marietta Corp., 805 F.Supp. 1530, 1543-44 (D.Colo.1992) (co-workers' racial jokes,...