Wright-Simmons v. City of Oklahoma City, WRIGHT-SIMMON

• Decision Date: 15 September 1998
• Docket Number: No. 96-6203,P,WRIGHT-SIMMON,96-6203
• Citation: 155 F.3d 1264
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 105, 74 Empl. Prac. Dec. P 45,528, 98 CJ C.A.R. 5016 Sharronlaintiff--Appellant, v. THE CITY OF OKLAHOMA CITY, a Municipal Corporation, Defendant--Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1264

155 F.3d 1264

78 Fair Empl.Prac.Cas. (BNA) 105,

74 Empl. Prac. Dec. P 45,528, 98 CJ C.A.R. 5016

Sharron WRIGHT-SIMMONS, Plaintiff--Appellant, v. THE CITY OF OKLAHOMA CITY, a Municipal Corporation Defendant--Appellee.

No. 96-6203.

United States Court of Appeals Tenth Circuit.

Sept. 15, 1998.

Jeffrey A. Lee (George Freedman, with him on the briefs), Lee & Freedman, P.C., Oklahoma, City, Oklahoma, for Plaintiff-Appellant.

Wiley L. Williams, Assistant Municipal Counselor (William O. West, Municipal Counselor, and Susan K. Noland, Assistant Municipal Counselor, with him on the brief), Office of Municipal Counselor, Oklahoma City, Oklahoma, for Defendant-Appellee.

Before TACHA and BALDOCK, Circuit Judges, and GREENE, District Judge. ^*

TACHA, Circuit Judge.

Plaintiff, a black employee in the Metro Transit Department of the City of Oklahoma City, appeals the district court's grant of summary judgment in favor of the City on her claims of racial discrimination and retaliation in violation of Title VII. Plaintiff alleges that one of her supervisors, Terry Armentrout, created a racially hostile work environment and that, after her complaints led to Armentrout's resignation, various coworkers retaliated against her. The district court ruled against plaintiff on her discrimination claim, concluding that plaintiff did not show that Armentrout made more than sporadic racial slurs and failed to establish the existence of a hostile work environment. Moreover, the court determined that even if Armentrout did create a racially hostile work environment, the City was not liable for it. The court also ruled against plaintiff on her retaliation claim, holding that even if individual coworkers retaliated against plaintiff, the City was not liable for their actions.

We take jurisdiction under 28 U.S.C. § 1291. Because this is an appeal from a summary judgment decision, we recite and consider the facts in the light most favorable to the plaintiff. See Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 781 (10th Cir.1995). We affirm in part, reverse in part, and remand.

I.

Plaintiff began working in the Metro Transit Department in August 1990, where, as the Clerical Coordinator, she supervised four or five customer service clerks. From August 1990 until March 1993, plaintiff's immediate supervisor was Vicki Harty. In March 1993, Harty was moved aside and plaintiff thereafter reported directly to Terry Armentrout, the Assistant Director of Metro Transit. Armentrout, in turn, reported to Steve Klika, the Director of Metro Transit.

The evidence, viewed in the light most favorable to plaintiff, shows that Armentrout frequently made racial slurs and racially derogatory comments. Armentrout also expressed the opinion that too many blacks worked in the department, and he treated the black employees in the department different from the white employees. In the summer of 1993, plaintiff complained to Klika about Armentrout's racist language and conduct. Klika informed plaintiff he would talk to Armentrout about his language, but told plaintiff she should understand that Armentrout grew up in southern Oklahoma and was not racially sensitive. Klika subsequently told Armentrout to watch his language. Armentrout later took plaintiff to task for complaining about his conduct to Klika, rather than directly to him. On December 12, 1993, Klika resigned as Director of Metro Transit, and Armentrout became the Acting Interim Director. Armentrout immediately informed plaintiff she was being demoted, and either Armentrout or Harty told plaintiff that she no longer needed to attend supervisory staff meetings. Armentrout also informed plaintiff that she would no longer report to him, but would report to Harty once again.

Plaintiff testified that once Harty became her direct supervisor again, she seemed to constantly watch plaintiff. Several other employees substantiated this allegation, and Hugh Kierig, a supervisor in the Planning Division of Metro Transit, verified that Armentrout had given Harty instructions to watch and monitor plaintiff. Harty stated that Armentrout once talked about putting a monitoring device on plaintiff's telephone. In January 1994, plaintiff contacted Dianna Berry in the Personnel Department to discuss an unrelated matter. During their conversation, plaintiff told Berry that she had been documenting incidents that plaintiff believed to be discriminatory and that she knew people who could verify her allegations. Berry asked plaintiff to give her the names of the people and any documentation she had. On February 7, Harty and Kierig contacted Berry to discuss plaintiff's deteriorating work performance and what corrective actions could be taken. When questioned by Berry, Harty and Kierig attributed plaintiff's deteriorating performance to her relationship with Armentrout and his inappropriate comments to plaintiff. Harty and Kierig told Berry they had never reported Armentrout's conduct because they were afraid to get involved.

Plaintiff eventually gave Berry the requested information on February 14. On February 23, Berry began an official investigation of plaintiff's allegations. As part of the investigation, Berry or other members of the Personnel Department interviewed thirteen past or present Metro Transit employees. These interviews generally confirmed plaintiff's allegations concerning Armentrout's racist conduct. Thereafter, Berry and Lloyd Rinderer, the Personnel Director, interviewed Armentrout to give him an opportunity to respond to the allegations. On March 2, Berry prepared a two-page report of the investigation, to which she attached all the interview notes. In her report, Berry concluded that "Mr. Armentrout's conduct would be considered inappropriate, regardless of the circumstances," and that "the criteria for determining racial harassment has been met." Appellant's App. at 254. Berry submitted her report to Rinderer, who then submitted it to Don Bown, the City Manager. Bown subsequently met with Armentrout and, based on the information contained in the report, informed Armentrout that he would be fired if he did not resign. On March 25, Armentrout submitted his letter of resignation to Bown.

Plaintiff took a leave of absence from April 11 until the beginning of July. While on leave, she filed a grievance against Harty, which was investigated by Randall Hume, the newly appointed Director of Metro Transit. Hume concluded that the evidence did not support plaintiff's allegations of either discrimination or retaliation by Harty, but he did advise plaintiff that, based on his assessment of the operating needs of Metro Transit, there would be a change in the organizational structure and plaintiff would have a different supervisor. When plaintiff returned to work in July, Rick Cain, the new Assistant Director of Metro Transit, became plaintiff's immediate supervisor.

Plaintiff contends that after she returned to work, various employees began retaliating against her and the other customer service clerks because of plaintiff's complaints against Armentrout. Plaintiff asserts that the retaliation began when one or more white employees reported plaintiff for illegally parking in a handicapped space in the employee parking lot, for which plaintiff received a ticket. Plaintiff also claims that various white employees made her work more difficult by failing to provide her with information in a timely fashion and by being rude to her. Plaintiff related her complaints to both Cain and Hume. At the same time, various Metro Transit employees, who called themselves "The Group," complained to Hume and others about plaintiff's poor performance, among other things. Plaintiff believes that The Group intended to force her to resign through continual harassment. Hume took several steps to resolve the internal disputes in his office, which he viewed as arising largely from employee confusion over internal policies and procedures. Despite Hume's efforts, the situation had not improved by the time plaintiff filed the present suit.

II.

Before determining whether plaintiff's evidence of a hostile work environment and retaliation are sufficient to survive summary judgment, we must first consider whether the two-page report prepared by Berry, and the interview notes attached thereto, are admissible evidence. The City argues that the interview notes attached to Berry's report are inadmissible hearsay. Plaintiff contends that neither the report nor the notes are hearsay because they are offered against a party and constitute "a statement of which the party has manifested an adoption or belief in its truth." Fed.R.Evid. 801(d)(2)(B).

"It is well settled in this circuit that we can consider only admissible evidence in reviewing an order granting summary judgment." Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir.1995). While the party opposing summary judgment "need not produce evidence in a form that would be admissible at trial, ... the content or substance of the evidence must be admissible." Thomas v. IBM, 48 F.3d 478, 485 (10th Cir.1995) (citations and internal quotation marks omitted). Hearsay testimony cannot be considered because a third party's description of a witness' supposed testimony is "not suitable grist for the summary judgment mill." Id. (citations and internal quotation marks omitted).

We review a district court's evidentiary rulings for abuse of discretion. See United States v. Davis, 40 F.3d 1069, 1076 (10th Cir.1994). In this case, the district court's opinion does not address the admissibility of the report or the attached interview notes for the purpose of the summary judgment inquiry. As we explain below, that evidence is not hearsay. Thus, even if the district court ruled on the summary judgment motion without considering the report and attached notes, that decision to exclude the evidence would itself constitute an abuse of discretion requiring reversal and consideration of...