O'shea v. Yellow Tech. Serv.

• Decision Date: 28 July 1999
• Docket Number: No. 97-3387,97-3387
• Parties: (10th Cir. 1999) MAURINE V. O'SHEA, Plaintiff - Appellant, v. YELLOW TECHNOLOGY SERVICES, INC., a Delaware corporation, Defendant - Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1093

185 F.3d 1093 (10th Cir. 1999)

MAURINE V. O'SHEA, Plaintiff - Appellant, v. YELLOW TECHNOLOGY SERVICES, INC., a Delaware corporation, Defendant - Appellee.

No. 97-3387

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 28, 1999

Appeal from the United States District Court for the District of Kansas (D.C. No. 96-CV-2370) [Copyrighted Material Omitted] James E. Kunce, Overland Park, Kansas, for Plaintiff-Appellant.

Robert W. McKinley (Tedrick A. Housh III with him on the brief), Swanson, Midgley, Gangwere, Kitchin & McLarney, LLC, Kansas City, Missouri, for Defendant-Appellee.

Before KELLY, McKAY, and LUCERO, Circuit Judges.

McKAY, Circuit Judge.

Plaintiff Maurine V. O'Shea filed this action against her employer, Defendant Yellow Technology Services, Inc., alleging hostile environment sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e to 2000e-17, and the Kansas Acts Against Discrimination, Kan. Stat. Ann. 44-1001 to 44-1044. Plaintiff claimed that sexual harassment by her fellow employees and supervisors was so severe and pervasive that it amounted to a hostile work environment which caused her to quit her job.¹ The district court granted Defendant's motion for summary judgment. See O'Shea v. Yellow Tech. Servs., Inc., 979 F. Supp. 1390 (D. Kan 1997). It first concluded that there was evidence from which a jury could find that a coworker's derogatory comments about women and his statements to other coworkers that Plaintiff was planning to file a sexual harassment suit against him were "based on [P]laintiff's gender or sexual animus." Id. at 1396. The court ultimately determined, however, that this conduct was neither pervasive nor severe enough to amount to an objectively hostile work environment. The decision was based in part on the court's determination that the other evidence of hostility in the record was unrelated to gender or sexual animus, because it believed that "[o]nly . . . conduct which . . . has [been] found to be based upon gender or sexual animus [should] be considered" in evaluating the severity and pervasiveness of the conduct. Id. It subsequently denied Plaintiff's motion for reconsideration, and Plaintiff appeals the grant of summary judgment in favor of Defendant.

On appeal, Plaintiff argues that she presented sufficient genuine issues of material fact to survive summary judgment on the issue of whether the alleged harassing conduct was based on gender or sexual animus. She also claims that genuine issues of material fact regarding the severity and pervasiveness of the conduct should have precluded summary judgment. Thus, the critical issue is whether, examining all of the evidence and reasonable inferences therefrom in a light most favorable to Plaintiff, a jury reasonably could infer that a hostile work environment existed and that it had a reasonable nexus to the sexual and gender-based harassment Plaintiff suffered.

We review de novo a district court's grant or denial of summary judgment, and we apply the same legal standard employed by the district court pursuant to Federal Rule of Civil Procedure 56(c). See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996). In reviewing such dispositions, this court repeatedly has emphasized that we must draw all inferences in favor of the party opposing summary judgment. See, e.g., Trujillo v. University of Colo. Health Sciences Ctr., 157 F.3d 1211, 1213 (10th Cir. 1998) (stating that in reviewing summary judgment disposition, court draws all reasonable inferences in favor of nonmoving party); Curtis v. Oklahoma City Pub. Sch. Bd. of Educ., 147 F.3d 1200, 1214 (10th Cir. 1998) ("In determining whether a genuine issue of material fact exists, the court must draw all reasonable inferences in favor of the nonmoving party."). In this respect, we must view the evidence in context, not simply in its segmented parts. Recently we described the inquiry governing the evaluation of hostile work environment claims as follows: "[T]he existence of sexual harassment must be determined 'in light of the record as a whole,' and the trier of fact must examine the totality of the circumstances, including 'the context in which the alleged incidents occurred.'"² Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257, 1262 (10th Cir. 1998) (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57, 69 (1986)), cert. denied, __ U.S. __, 119 S. Ct. 1334 (1999). Such a thorough examination of the record is required because "the very term 'environment' indicates that allegedly discriminatory incidents should not be examined in isolation." Id. Under this interpretation, because conduct which is not gender-based may form a part of the context or environment in which the discriminatory conduct is alleged to have occurred, such conduct may be relevant to, and should be considered in, evaluating a hostile work environment claim. In Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987), for example, we held that "[e]vidence of a general work atmosphere . . . --as well as evidence of specific hostility directed toward the plaintiff--is an important factor in evaluating the claim." Thus, even if some of the alleged conduct was not "'explicitly sexual in nature,'" Smith v. St. Louis Univ., 109 F.3d 1261, 1265 (1997) (citation omitted), if it reasonably could be inferred that the conduct was related to gender or arose out of a context in which admittedly sex- and gender-related conduct occurred, then it is for the fact finder to decide whether such an inference should be drawn. See Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994) (explaining that "[b]ecause discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant").

Facially neutral abusive conduct can support a finding of gender animus sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other, overtly gender-discriminatory conduct. See Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir. 1994) (noting that, in determining whether the proponent of a hostile work environment claim has demonstrated racial animus, the court considers "the totality of the circumstances and therefore consider[s] the racial comments along with the general ridicule of [plaintiff] by the other coworkers"). We agree with the Eighth Circuit which recently addressed the relevance of facially neutral conduct in the context of a race and sex discrimination action and held that

racial epithets are often the basis of racial harassment claims[] and may likewise create an inference that racial animus motivated other conduct as well.

All instances of harassment need not be stamped with signs of overt discrimination to be relevant under Title VII if they are part of a course of conduct which is tied to evidence of discriminatory animus. Harassment alleged to be because of sex need not be explicitly sexual in nature.

Carter v. Chrysler Corp., 173 F.3d 693, 701 (8th Cir. 1999) (citations omitted). Of course,

[f]or a hostile environment claim to survive a summary judgment motion, "a plaintiff must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult[] that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."

Penry, 155 F.3d at 1261 (quoting Davis v. United States Postal Serv., 142 F.3d 1334, 1341 (10th Cir. 1998)); see Meritor, 477 U.S. at 67. The severity and pervasiveness of the conduct must be judged from both an objective and a subjective perspective.³ See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). "[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering 'all the circumstances.'" Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S. Ct. 998, 1003 (1998) (citation omitted). "[W]hether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances . . . [,] includ[ing] the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. Finally, we note that the severity and pervasiveness evaluation is particularly unsuited for summary judgment because it is "'quintessentially a question of fact.'" Beardsley v. Webb, 30 F.3d 524, 530 (4th Cir. 1994) (citation omitted); cf. Smith, 109 F.3d at 1264 (stating that "'summary judgment should seldom be used in employment discrimination cases'" (quoting Crawford, 37 F.3d at 1341)).

The evidence and reasonable inferences viewed in favor of Plaintiff show that she began her employment with Defendant in June 1991. She was a satisfactory employee who received a promotion to systems programmer specialist within sixteen months after she was hired. Her responsibilities included upgrading and maintaining the products associated with the MVS mainframe operating system and assisting with tape and disk storage management for the MVS mainframe system.

In January 1994, Plaintiff joined the team of systems programmers working on UNIX operating systems. She was the only systems administrator on the UNIX team. Vicky Lynn Logan was the UNIX team leader. Her responsibilities included managing the workload and assisting in employee evaluations. Based on her experience working with and evaluating Plaintiff, Ms. Logan concluded that Plaintiff "was a very competent systems programmer, . . . a team player, . . . cooperative, and that she was neither a trouble maker, nor did she have a volatile personality." Appellant's App. at 224.

In February 1994, Defendant began implementing a project called FileNet, which was a program...