Hansen v. Skywest Airline
Filing
[10431263] Affirmed in Part and Reversed and Remanded in Part;Terminated on the merits after oral hearing;Written, signed, published; Judges Briscoe, McKay (authoring) and Matheson. Mandate to issue. [15-8112]
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
PUBLISH
Page: 1
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 21, 2016
FOR THE TENTH CIRCUIT
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DAVID HANSEN,
Plaintiff - Appellant,
v.
No. 15-8112
SKYWEST AIRLINES,
Defendant - Appellee.
_____________________________
UNITED STATES EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Curiae.
_________________________________
Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 1:13-CV-00244-ABJ)
_________________________________
Jeffrey C. Gosman of Gosman Law Office, Casper, Wyoming, for Plaintiff-Appellant.
Chad A. Shultz (Leslie K. Eason and Julia C. Glasgow with him on the briefs), of Gordon
& Rees, Atlanta, Georgia, for Defendant-Appellee.
Philip M. Kovnat, Attorney (P. David Lopez, General Counsel; Jennifer S. Goldstein,
Associate General Counsel; Lorraine C. Davis, Assistant General Counsel; Elizabeth E.
Theran, Attorney, with him on the briefs), Equal Employment Opportunity Commission
Office of General Counsel, Washington, D.C., filed an amicus curiae brief for the United
States Equal Employment Opportunity Commission.
_________________________________
Before BRISCOE, McKAY, and MATHESON, Circuit Judges.
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 2
_________________________________
McKAY, Circuit Judge.
_________________________________
Plaintiff David Hansen filed this suit against his former employer, Defendant
SkyWest Airlines, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–
2000e–17, for sex-based hostile work environment, disparate treatment, quid pro quo
harassment, coworker harassment, retaliation, and for intentional infliction of emotional
distress under state law. The district court granted summary judgment for SkyWest with
respect to all of his claims. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
reverse in part and remand for further proceedings consistent with this opinion. We
affirm the district court’s grant of summary judgment on the disparate treatment claim,
which Mr. Hansen did not contest on appeal.
FACTS
Mr. Hansen worked for Defendant SkyWest Airlines from 2003 until 2011,
when he was fired. Mr. Hansen is gay. He claims he was sexually harassed by
several of his supervisors and coworkers over the eight years he worked for SkyWest.
Mr. Hansen and SkyWest hotly dispute the facts surrounding his time at SkyWest but,
because the case was resolved against him on summary judgment, we present the
facts in the light most favorable to Mr. Hansen.1
1
Some of the following narrative derives from Mr. Hansen’s declaration. After
thoroughly reviewing the record and the declaration, we disagree with SkyWest that
the declaration is overly conclusory, unsupported, or contradicted by the record. Nor
is the declaration defective simply because it is unsworn. See 28 U.S.C. § 1746.
–2–
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 3
Mr. Hansen spent his first four years with SkyWest as a customer-service agent
at the Salt Lake City International Airport before transferring to the Jackson Hole
Airport in Wyoming in December 2007. According to Mr. Hansen, the sexual
harassment began in Salt Lake. Mr. Hansen alleges that “even early in [his] career at
SkyWest” he had “supervisors and others” proposition him for sex and “touch[ ]
[him] in ways that were extremely unwelcome.”2 A435. Although there is not much
factual detail for this four-year span, there is at least one specific incident of sexual
harassment in the record: Mr. Hansen testified in a deposition that in 2004 a
supervisor, Brian Johansen, who is also gay, “pushed himself against” Mr. Hansen
and “comment[ed] about [his] smell,” and then “followed up with an e-mail.” A341–
42. Mr. Hansen did not recall what more was said, but he maintained that “it was
sexual in nature and there was no doubting it was sexual in nature.” Id.
At some point in 2004, Mr. Hansen’s psychotherapist wrote an undated letter
“to whom it may concern” about Mr. Hansen’s psychological wellbeing. According
to this letter, Mr. Hansen presented with symptoms of Post-Traumatic Stress Disorder
(PTSD). The letter warned that Mr. Hansen’s “condition could be triggered by
employment issues such as discrimination, conflict, and a sense that he is being taken
advantage of.” A400. Mr. Hansen delivered this letter to SkyWest’s humanresources department, and both Mr. Hansen and his therapist met with SkyWest’s
human-resources department in Salt Lake City several times over the next “three or
four years” to inform them that “any sexual touching or other sexual misconduct”
2
We cite the Appendix contents as “A” followed by the page number.
–3–
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 4
might trigger his “PTSD like symptoms.” A436. Later, Mr. Hansen requested
accommodations for his PTSD under the Family and Medical Leave Act, which
SkyWest provided; Mr. Hansen could take a “timeout” at work when he felt
threatened or was under considerable stress.
In December of 2007, Mr. Hansen transferred from Salt Lake to SkyWest’s
Jackson, Wyoming, station where he worked as a “ticket counter/gate agent.” A436.
According to Mr. Hansen, his coworker, John Robinson, and their supervisor, Lynn
Katoa, both of whom are gay, began sexually harassing him soon after he transferred.
Mr. Robinson and Mr. Katoa were also dating. Mr. Hansen claims Mr. Robinson
“began to rub against [him] with his genitals” at work. A436. Mr. Hansen testified
in his deposition that Mr. Robinson rubbed himself against Mr. Hansen several times
and that, on one particular occasion, Mr. Robinson declared, “I love it when Lynn
[Katoa] gives it to me hard.” A321. Mr. Hansen also alleges that Mr. Katoa similarly
rubbed his genitals across Mr. Hansen’s back and asked, “Oops. Did that get you
excited?” A311.
In April 2008, Mr. Hansen, Mr. Katoa, and Mr. Robinson were scheduled to
travel to Denver to attend training. Mr. Katoa was responsible for arranging
accommodations; he booked one room for the three men to share. Mr. Hansen told
the Jackson station manager he was uncomfortable sharing a room with Mr. Katoa
and Mr. Robinson, and Mr. Hansen was permitted to have his own room. (Mr.
Hansen also reported to the station manager that Mr. Robinson and Mr. Katoa were
touching him in ways that he found unwelcome and had engaged him in unwelcome
–4–
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 5
“sex talk.” A552.) Apparently, this arrangement upset Mr. Katoa, who complained
to the station manager. Mr. Katoa and Mr. Robinson later “pushed” Mr. Hansen “into
the corner of the supervisor’s office,” and demanded to know, “Why won’t you stay
with us in the hotel room in Denver? I don’t understand it. There’s a problem. Why
did you request a special accommodations not to stay in the hotel room with us? Are
you afraid?” A315–16; A311–12.
Sometime in the spring of 2008, Mr. Robinson was promoted and became Mr.
Hansen’s supervisor. After he was promoted, Mr. Robinson “made it very clear” that
Mr. Hansen had to “suck his dick” or Mr. Hansen would be out of a job. A339–40.
Mr. Hansen claims that Mr. Robinson said: “If you suck my dick, like I do Lynn
Katoa’s, then you’ll be promoted to a supervisor or higher just like I was. That’s how
I made this position.” A297. According to Mr. Hansen, Mr. Katoa had also alluded
to Mr. Robinson’s promotion as a reward for performing sexual favors for Mr. Katoa.
Mr. Hansen further alleges that Mr. Robinson and Mr. Katoa harassed him
several more times during the spring of 2008, including some demonstrations of
hostility for reporting sexual misconduct in the workplace. Sometime around May
2008, Mr. Katoa pressed his shoulder against Mr. Hansen’s shoulder and said, “I
understand that you’ve lodged a complaint with [the station manager] that I made you
feel uncomfortable. What about this makes you feel uncomfortable?” A312. Later
that month, Mr. Katoa again questioned Mr. Hansen about a complaint he had filed:
he put his hand on Mr. Hansen’s back and said, “I’m upset. I’ve understood that you
filed a grievance against [another employee] for her showing another supervisor’s
–5–
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 6
penis on the phone. Why would you do that? Why don’t you just join us?” A313.
Later, Mr. Robinson, in reference to the same grievance, pushed Mr. Hansen and said,
“I know you were the one who filed the grievance . . . . You need to get along with
us here and you need to let this roll off your back.” A322.
A few months later, in the summer of 2008, Mr. Robinson asked Mr. Hansen,
“Doesn’t my butt look good?” and pretended to fall onto Mr. Hansen. A322–23. Mr.
Hansen claims he told Mr. Robinson he felt uncomfortable and attempted to walk
away, but that Mr. Robinson followed him and asked: “Why are you not helping us
to push the gay agenda? . . . You are gay. Why are you not going along with this?”
A323. Mr. Hansen was “very upset” over this incident and he left to speak with a
supervisor. Id. When Mr. Hansen returned, Mr. Robinson said, “[The station
manager]’s gonna be gone, and they’re gonna promote me because I’m doing exactly
what I do, and that is provide—or get along with them. Do these things, and just
watch.” Id.
In November 2008, Mr. Hansen returned home to Salt Lake City for
Thanksgiving. There, Mr. Johansen, a SkyWest supervisor for Salt Lake, forced
himself onto Mr. Hansen and tried to push Mr. Hansen to the ground. According to
Mr. Hansen’s deposition, Mr. Johansen tried to lay on top of Mr. Hansen, and said,
“Down bitch.” A333. In January 2009, Mr. Hansen alleges he was sexually harassed
by Mr. Robinson and Mr. Katoa at the SkyWest Christmas party. Mr. Robinson and
Mr. Katoa, who were both inebriated, invited Mr. Hansen to join them skinny-dipping
in a hot tub. Mr. Hansen claims that Mr. Robinson grabbed him and insisted,
–6–
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 7
“You’ve got to come to the hot tub with us. You got to get in naked. You got to
come to the hot tub.” A328.
In April 2009, Mr. Robinson again rubbed his genitals against Mr. Hansen’s
lower body—this time, in front of multiple witnesses. One witness testified in a
deposition that she saw “John Robinson rubbing his front up against [Mr. Hansen’s]
back. . . [a]t the ticket counter.” A619. Another witness recounted seeing Mr.
Robinson “c[o]me up behind” Mr. Hansen and “rub[ ]. . . . [h]is unit, junk, whatever
you want to call it,” up against Mr. Hansen’s “butt.” A681. Mr. Hansen also claims
Mr. Robinson stalked him around the workplace and, at one point, shoved Mr.
Hansen into an unoccupied office and insisted that Mr. Hansen was “going to take his
advances at that time.” A328. Mr. Hansen rejected Mr. Robinson and pushed past
him to escape.
On April 17, 2009, Mr. Hansen reported Mr. Robinson and Mr. Katoa to Danny
Luton, the new station manager. According to a witness, Mr. Luton “started to get
verbally abusive” and asserted that Mr. Hansen was making it all up. A523. He told
Mr. Hansen that if “he was to write any grievances or say anything about the situation
that he would make sure that [Mr. Hansen] had no job and that [SkyWest
headquarters] would never see those grievances.” Id.
Mr. Hansen also reported to an HR official at SkyWest that he “had been
sexually harassed and badgered by Robinson.” A737. Mr. Hansen’s complaint led to
a meeting with two managers, Mr. Luton and David Hyllested, to discuss the April
incidents. According to Mr. Hansen, Mr. Luton threatened to “fire [Mr. Hansen] on
–7–
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 8
the spot,” or “paper up [his] file until he could fire [him],” and that he “would sue
[Mr. Hansen] if [he] didn’t drop the complaint.” A737. No corrective action was
taken to address the alleged sexual harassment. Instead, Mr. Hansen was informed
that he was under investigation for shoving another coworker. Mr. Hansen also
learned that Mr. Robinson had reported Mr. Hansen for pushing him too. Mr. Hansen
was sent home and not allowed to return to work until June 18, 2009.
Soon after Mr. Hansen returned to work, he submitted an intake questionnaire
to the Wyoming Fair Employment Program (FEP), in which he complained about
workplace sex discrimination and disability discrimination. According to Mr.
Hansen, he was told by an employee of the Wyoming FEP that he “could not file a
charge of discrimination based on sex because it was a sexual orientation claim.”
A445. Based on this, Mr. Hansen filed a charge on June 26, 2009, with the Wyoming
FEP alleging that from August 2007 through April 2009 he had experienced
discrimination based on age and disability and that he was retaliated against for
engaging in protected activity; the charge did not reference sexual harassment.
In October 2009, four months after Mr. Hansen filed this charge, Mr. Robinson
transferred to Seattle. As the district court explained, Mr. Robinson “left Jackson
because he and Lynn Katoa were no longer dating and he was still in love with Katoa
and wanted to continue dating.” A746. It appears from the record that Mr. Hansen
did not experience sexual harassment while Mr. Robinson was in Seattle. But the
harassment then resumed when Mr. Robinson returned to Jackson around June of
2010. According to Mr. Hansen, he voiced his concerns to SkyWest human resources
–8–
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 9
and the Jackson station manager about Mr. Robinson’s return. Those concerns,
apparently, went unaddressed, and Mr. Robinson was made Mr. Hansen’s “direct
supervisor” in the fall. A450. Specifically, Mr. Hansen alleges that in October 2010,
Mr. Robinson rubbed himself against Mr. Hansen in front of airline passengers and
said, “I heard you bought a new home here. I would really like to come over and see
your bedroom.” A759.
According to Mr. Hansen, he again voiced his concerns about Mr. Robinson to
Mr. Hyllested, the new station manager. He also reminded Mr. Hyllested that he had
a pending grievance against Mr. Robinson that had not been fully resolved. Mr.
Hyllested told Mr. Hansen he thought Mr. Hansen was making it all up and that he
did not want to hear about it. When Mr. Hyllested failed to address the situation, Mr.
Hansen tried to escape Mr. Robinson by transferring to a different assignment in a
different part of the airport, known as the “ramp area.” A450. But, Mr. Hansen could
not avoid lewd talk. Mr. Hansen claims his coworkers at the ramp area “subjected
[him] to explicit sexual commentary on a daily basis.” A450. In particular, Mr.
Hansen asserts that his “coworkers engaged in discussions involving men and women
having sex and defecating on each other during the sex act.” A450. When he
reported this lewd commentary to Mr. Hyllested, Mr. Hyllested responded: “I am not
worried about what you report about them, I am worried about what they report about
you. You need to quit worrying about them and get back to work.” A450. Around
this same time, Mr. Katoa approached Mr. Hansen about a gym membership at a local
gym, and he remarked to Mr. Hansen that he could “sexually be aggressive” or
–9–
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 10
“sexually harass” Mr. Hansen there “since it wasn’t work.” A760. Mr. Hansen has
also alleged a female supervisor told him that if he did not “pick up [her] supervisory
shift,” she would “add to [his] sexual harassment problems.” A760–61. According to
Mr. Hansen, he renewed his request for accommodations, specifically stating that his
PTSD was triggered by recent incidents of sexual harassment.
In January 2011, Mr. Hansen got involved in an argument with a coworker
over changing tickets for passengers. This led to a heated exchange and SkyWest
ultimately terminated Mr. Hansen’s employment. The events leading up to Mr.
Hansen’s termination were investigated by SkyWest officials, including Mr. Katoa.
Mr. Hansen claims that, during the investigation, Mr. Katoa cornered Mr. Hansen,
“rubbed his clothed genitals against him,” and “asked if he was afraid he was
harassing Hansen.” A749. Mr. Hansen further alleges the investigation was
inadequate. He claims the investigators, including Mr. Katoa, failed to interview
witnesses who could have testified to Mr. Hansen’s version of events. Because, in
Mr. Hansen’s opinion, the investigation was biased, he asked one witness to email a
statement detailing the events surrounding his termination, which she did; Mr.
Hansen then forwarded it on to SkyWest. Mr. Hansen has also maintained that other
demerits on his personnel record were fabricated by his coworkers and by
management.
After appealing his termination through SkyWest’s internal grievance process
to no avail, he filed a second charge of discrimination to the Wyoming FEP in August
2011, claiming sex discrimination and retaliation under Title VII and Wyoming law.
– 10 –
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 11
He alleged, among other things, that he was subjected to “unwelcome sexual
harassment” by his “supervisor, John Robinson” from May 1, 2008, to February 11,
2011, and that “[t]he acceptance or rejection of the harassment . . . was an express[ ]
or implied condition to the receipt of a job benefit or cause [of] a tangible job
detriment.” A753. After he filed this second charge, he withdrew his 2009 charge,
which was still pending; he had never amended his 2009 charge to add claims of
sexual discrimination. Meanwhile, the Wyoming FEP investigated Mr. Hansen’s
allegations and issued a finding of probable cause that Mr. Hansen had endured a
hostile work environment at SkyWest. After receiving his right-to-sue notice from
the EEOC, Mr. Hansen filed this lawsuit.
DISCUSSION
We review a grant of summary judgment de novo. Tademy v. Union Pac.
Corp., 614 F.3d 1132, 1138 (10th Cir. 2008). “We will affirm the district court’s
disposition only if our independent review of the record, viewing the facts in the light
most favorable to the nonmoving party, reveals that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of
law.” Kramer v. Wasatch Cty. Sheriff ’s Office, 743 F.3d 726, 736 (10th Cir. 2014)
(brackets and citation omitted). We also review de novo the district court’s
application of state law. Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991).
I.
Hostile Work Environment
Under Title VII, a plaintiff must file a timely charge with the EEOC or a state
agency before filing suit. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
– 11 –
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 12
109 (2002) (citing 42 U.S.C. § 2000e–5(e)(1)). In states like Wyoming, which have
prohibited discrimination under § 2000e–5, see Wyo. Stat. Ann. § 27–9–105, the
charge must be filed within 300 days “after the alleged unlawful employment practice
occurred,” § 2000e–5(e)(1).
When it comes to discrete acts of discrimination or retaliation, the application
of Title VII’s limitations period is straightforward: “A discrete retaliatory or
discriminatory act ‘occurred’ on the day that it ‘happened.’” Morgan, 536 U.S. at
110. But hostile work environment claims are different. “A hostile work
environment claim is composed of a series of separate acts that collectively constitute
one ‘unlawful employment practice.’” Id. at 117. Thus, “[t]he ‘unlawful
employment practice’ . . . cannot be said to occur on any particular day.” Id. at 115.
Rather, it takes place over time, “and, in direct contrast to discrete acts, a single act
of harassment may not be actionable on its own.” Id. Consequently, “[i]t does not
matter, for purposes of the statute, that some of the component acts of the hostile
work environment fall outside the statutory time period. Provided that an act
contributing to the claim occurs within the filing period, the entire time period of the
hostile environment may be considered by a court for the purposes of determining
liability.” Id. at 117. The court’s task, then, “is to determine whether the acts about
which an employee complains are part of the same actionable hostile work
environment practice, and if so, whether any act falls within the statutory time
period.” Id. at 120.
– 12 –
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 13
Although Morgan itself does not provide precise instruction on how to
evaluate whether the offending acts were part of “the same actionable hostile work
environment practice,” we have recognized several non-exclusive factors to guide the
analysis. See Duncan v. Manager, Dep’t of Safety, City & Cty. of Denver, 397 F.3d
1300, 1309 (10th Cir. 2005). In Duncan, we considered whether the pre- and postlimitations period acts were “related by type, frequency, and perpetrator.” Id. We
have also looked to whether the acts occurred when the employee “was working in
the same place.” Tademy, 614 F.3d at 1144. These factors are not exhaustive:
Morgan “does not limit the relevant criteria, or set out factors or prongs.” McGullam
v. Cedar Graphics, Inc., 609 F.3d 70, 77 (2d Cir. 2010); see also Tademy, 614 F.3d at
1143 (rejecting a “strict ‘type, frequency, and perpetrator’ test”). “[F]lexibility is
useful in a context as fact-specific and sensitive as employment discrimination and as
amorphous as hostile work environment.” McGullam, 609 F.3d at 77.
Conversely, an employer will not be liable when there is “no relation” between
the pre- and post-limitations acts, or if “for some other reason, such as certain
intervening action by the employer,” the later acts are no longer part of the same
hostile work environment claim. Morgan, 536 U.S. at 118.
Here, the district court misapplied Morgan. It held that Mr. Hansen could not
include as part of his hostile work environment claim any act of sexual harassment
occurring before October 13, 2010—300 days before his 2011 charge. But the
district court did not properly evaluate whether the sexual harassment that went on
before October 13, 2010, was related to the acts that occurred within the 300-day
– 13 –
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 14
limitations period. Instead, the district court seems to have been persuaded by
SkyWest’s argument that Mr. Hansen should be barred from including any events that
occurred more than 300 days before he filed his 2011 charge because “[a]llowing an
employee to double file in this matter,” i.e., by filing one charge in 2009 for age and
disability discrimination and then another in 2011 for sex-based discrimination,
“would violate the most basic res judicata principles.” A70. At the very least, the
district court’s lengthy discussion of the 2009 charge suggests it factored into the
court’s analysis. But the 2009 charge is immaterial to the Morgan “relatedness”
inquiry; it simply has no bearing on whether the harassing acts were similar.
The district court also said that Mr. Robinson’s temporary transfer to Seattle
was “problematic” for Mr. Hansen’s argument because the harassment abated for the
six months Mr. Robinson was away. A758. But, as the Supreme Court has
recognized, “it does not matter whether nothing occurred within the intervening . . .
days so long as each act is part of the whole.” Morgan, 536 U.S. at 118.
Furthermore, Mr. Robinson’s transfer was not the kind of “intervening action by the
employer” that may sever an otherwise related series of acts. See id. SkyWest did
not intervene to remedy the situation; Mr. Robinson left Jackson of his own volition
because his relationship with Mr. Katoa had come to an end. See Vickers v. Powell,
493 F.3d 186, 199 (D.C. Cir. 2007) (holding that a “routine personnel action[ ]” that
was not “intended to address” the hostile work environment does not “sever the
earlier incidents from the more recent incidents”).
– 14 –
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 15
The district court also quoted Duncan out of context. We said in Duncan that
“Title VII is not intended to allow employees to dredge up old grievances.” Duncan,
397 F.3d at 1308. True, “[u]nlitigated bygones are bygones,” id., but this case is not
like Duncan. In Duncan, the plaintiff alleged she had suffered various types of
sexual harassment over twenty years in seven different departments by several
different coworkers. See id. at 1304–08. By contrast, Mr. Hansen has alleged the
same type of sexual harassment (sexual propositions and unwelcome physical
contact) over a period of eight years total, and only four years in Jackson; he has
identified two primary harassers (Mr. Robinson and Mr. Katoa); and most of the
harassment occurred when Mr. Hansen was employed by SkyWest at the Jackson
airport.
For instance, the district court improperly excluded from consideration the
alleged April 2009 incident where Mr. Robinson rubbed himself against Mr. Hansen’s
lower body. But this is clearly related to the October 2010 incident, where Mr.
Robinson again rubbed himself against Mr. Hansen. Because these two instances of
harassment are related by type, perpetrator, and location, and because one occurred
within 300 days of the 2011 charge, the district court was wrong not to consider them
as part of the same actionable hostile work environment practice. Accordingly, Mr.
Hansen has demonstrated a triable issue as to whether this and other incidents
constituted “the same actionable hostile work environment practice.”
After excluding most of the alleged instances of sexual harassment as timebarred, the district court dismissed Mr. Hansen’s hostile work environment claim. It
– 15 –
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 16
held that the incidents within the 300-day limitations period were “not sufficiently
pervasive or severe to support” his claim. A778. We remand for the district court to
consider in the first instance whether, taking into account all related acts of sexual
harassment, a reasonable jury could conclude that Mr. Hansen’s “workplace was
permeated with discriminatory intimidation, ridicule, and insult, that was sufficiently
severe or pervasive to alter the conditions of his employment and create an abusive
working environment.” Tademy, 614 F.3d at 1144 (brackets and citation omitted).
II.
Retaliation
Turning to Mr. Hansen’s retaliation claim, Title VII makes it unlawful to
retaliate against an employee for opposing practices made unlawful by the statute. 42
U.S.C. § 2000e–3(a). “To prevail on a Title VII retaliation claim, a plaintiff must
establish that retaliation played a part in the employment decision[.]” Fye v. Okla.
Corp. Comm’n, 516 F.3d 1217, 1224 (10th Cir. 2008). This burden may be satisfied
in one of two ways. Under the direct or “mixed motives” approach, a plaintiff may
offer direct evidence that retaliation played a “motivating part” in the adverse
employment decision. Id. at 1225. If the plaintiff can prove that retaliatory animus
was a motivating factor, the burden then shifts to the employer to demonstrate that it
would have taken the same action absent the retaliatory motive. Id.
Alternatively, in the absence of direct evidence, a plaintiff may proceed under
the burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–04 (1973). Under this framework, the plaintiff must first establish
a prima facie case of retaliation by showing (1) “that he engaged in protected
– 16 –
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 17
opposition to discrimination,” (2) “that a reasonable employee would have found the
challenged action materially adverse,” and (3) “that a causal connection exists
between the protected activity and the materially adverse action.” EEOC v. PVNF,
L.L.C., 487 F.3d 790, 803 (10th Cir. 2007). “Once the plaintiff successfully asserts a
prima facie retaliation case, the burden shifts to the defendant (i.e., employer) to
come forward with a legitimate, non-retaliatory rationale for the adverse employment
action. If the defendant does so, the plaintiff must show that the defendant’s
proffered rationale is pretextual.” Lounds v. Lincare, Inc., 812 F.3d 1208, 1234 (10th
Cir. 2015) (internal quotation marks, ellipses, and citation omitted). As we have said,
“[p]retext can be inferred from evidence revealing ‘weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions’ in the employer’s explanation,” or it
can be shown “by providing direct evidence discrediting the proffered rationale, or by
showing that the plaintiff was treated differently from others similarly situated.” Id.
(internal quotation marks and citations omitted). Mr. Hansen has apparently elected
to proceed under the McDonnell Douglas burden-shifting framework in this case.
See A245.
The district court held that Mr. Hansen had failed to establish his prima facie
case. Reasoning that any protected opposition to sex-based discrimination was “too
remote in time” from his termination, the district court concluded “there are
insufficient facts alleged to support the third element of the prima facie case, a causal
connection between the protected action and the adverse acts.” A781. But the
district court overlooked several, more recent instances where Mr. Hansen reported
– 17 –
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 18
sexual harassment: He objected to Mr. Robinson’s return to Jackson based on his
concerns about Mr. Robinson’s pattern of harassment; he reminded Mr. Hyllested that
he had a pending grievance against Mr. Robinson; he reported to Mr. Hyllested that
he was subjected to unwanted, sexual commentary on a daily basis at the ramp area;
and he renewed his request for accommodations and explicitly stated that his PTSD
was triggered by recent incidents of sexual harassment. (SkyWest also failed to
address these 2010 reports in its briefing.)
It is unclear why the district court ignored the 2010 reports. By its terms, Title
VII prohibits retaliation against an employee who has “opposed any practice made an
unlawful employment practice” by Title VII. 42 U.S.C. § 2000e–3(a). The Supreme
Court has defined “oppose” in this context by looking to its ordinary meaning: “to
resist or antagonize; to contend against; to confront; resist; withstand, . . . to be
hostile or adverse to, as in opinion.” Crawford v. Metro. Gov’t of Nashville &
Davidson Cty., 555 U.S. 271, 276 (2009) (citations and ellipsis omitted). Under this
broad definition, “[w]hen an employee communicates to her employer a belief that
the employer has engaged in a form of employment discrimination, that
communication virtually always constitutes the employee’s opposition to the
activity.” Id. (quotation marks, ellipsis, emphasis, and citation omitted); see also
Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004) (“Protected
opposition can range from filing formal charges to voicing informal complaints to
superiors.”). Even before Crawford, we had recognized that Title VII broadly
protects an employee who reasonably believes he is opposing a practice made an
– 18 –
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 19
unlawful practice by Title VII, whether or not an actual violation has occurred. See
Crumpacker v. Kan. Dep’t of Human Res., 338 F.3d 1163, 1172 (10th Cir. 2003).
Thus, as one example, when Mr. Hansen reported Mr. Robinson’s alleged
misconduct to Mr. Hyllested in the fall of 2010, Mr. Hansen was engaging in
protected opposition. The district court erred in not considering whether a jury could
find that Mr. Hansen’s termination, which occurred in January 2011, was causally
linked to this report and others made around the same time.
III.
Intentional Infliction of Emotional Distress
Wyoming recognizes the tort of intentional infliction of emotional distress as
defined in the Second Restatement of Torts. See Leithead v. Am. Colloid Co., 721
P.2d 1059, 1065 (Wyo. 1986) (citing Restatement (Second) of Torts § 46(1) (Am.
Law Inst. 1965)).3 “To recover for intentional infliction of emotional distress, a
plaintiff must prove that the defendant’s conduct was extreme and outrageous and
that the defendant intentionally or recklessly caused the plaintiff to suffer severe
emotional harm.” Kanzler v. Renner, 937 P.2d 1337, 1341 (Wyo. 1997). Conduct is
“outrageous” when it goes “beyond all possible bounds of decency” and is “regarded
as atrocious, and utterly intolerable in a civilized society.” Id. (quoting Restatement
(Second) of Torts § 46 cmt. d).
3
“State law claims before a federal court on supplemental jurisdiction are
governed by state law.” Time Warner Entm’t Co. v. Everest Midwest Licensee,
L.L.C., 381 F.3d 1039, 1044 (10th Cir. 2004).
– 19 –
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 20
Wyoming has also adopted the Second Restatement’s understanding of the
roles that judges and juries play in determining “outrageousness”: “When presented
with a motion for summary judgment, the court, as a matter of law, makes
preliminary determinations regarding the outrageousness of the conduct and the
severity of the emotional distress.” Id. This preliminary determination “is simply to
decide whether the defendant’s conduct may reasonably be regarded as so extreme
and outrageous as to permit recovery.” Bevan v. Fix, 42 P.3d 1013, 1021 (Wyo.
2002). “If this threshold question can be answered either in the affirmative or by a
finding that reasonable men and women may differ in deciding the issue, then the
court must allow a jury to ultimately decide whether, in the particular case, the
conduct has been sufficiently extreme and outrageous to result in liability.” Id.
The Wyoming Supreme Court has applied these principles in a number of
employment cases. See Cook v. Shoshone First Bank, 126 P.3d 886, 891–92 (Wyo.
2006) (collecting cases). It recognizes “that certain conduct in employment
situations may be outrageous enough to provide the employee with a basis of
recovery.” Worley v. Wyo. Bottling Co., 1 P.3d 615, 628 (Wyo. 2000) (citing Kanzler,
937 P.2d at 1341). And it has specifically addressed when “inappropriate sexual
conduct in the workplace can, upon sufficient evidence, give rise to a claim of
intentional infliction of emotional distress.” Kanzler, 937 P.2d at 1341–42. Indeed,
the Wyoming Supreme Court has emphatically rejected sexual harassment in the
workplace: “[O]ur society has ceased seeing sexual harassment in the work place as a
playful inevitability that should be taken in good spirits and has awakened to the fact
– 20 –
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 21
that sexual harassment has a corrosive effect on those who engage in it as well as
those who are subjected to it. . .” Id. at 1342 (quoting Retherford v. AT&T Commc’ns
of Mountain States, Inc., 844 P.2d 949, 978 (Utah 1992)).
In Kanzler, the Wyoming Supreme Court surveyed caselaw on sexual
misconduct in the workplace and the tort of intentional infliction of emotional
distress. Id. at 1342–43. It “discern[ed]” four non-exclusive factors that help courts
determine “whether particular conduct in the workplace is sufficiently outrageous to
survive a preliminary motion”: (1) “Abuse of power”; (2) “Repeated
incidents/pattern of harassment”; (3) “Unwelcome touching/offensive, non-negligible
physical contact”; (4) “Retaliation for refusing or reporting sexually-motivated
advances.” Id. at 1343. The court in Kanzler then found that two of these factors
were met in the case before it: the plaintiff alleged “repeated incidents over a period
of several weeks in which [the defendant] stared at her, followed her, and subjected
her to sexually-motivated advances and physically intimidating behavior, each
escalating in intensity and severity,” and she alleged she had experienced
“unwelcome, non-negligible physical contact wherein [the defendant] touched and
hugged her even after she repeatedly rebuffed his advances, and ultimately confined
her in a closet and rubbed his crotch against her leg.” Id. Although only two of the
four factors were present, the court concluded that these “conditions and
circumstances” alleged by the plaintiff went beyond “mere insults” or “indignities,”
and, consequently, that the plaintiff’s claim should go to the jury. Id.
– 21 –
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 22
Viewing the evidence in the light most favorable to Mr. Hansen, a jury could
find that all four Kanzler factors are present here. First, the record contains ample
evidence of abuse of power. Mr. Hansen was sexually harassed by supervisors at
SkyWest, including his direct supervisors, Mr. Robinson and Mr. Katoa, who
threatened his continued employment if he did not submit to their advances.
Although “liability does not attach upon the mere existence of an employment
relationship,” the Wyoming Supreme Court has recognized that “the employer–
employee relationship” is a “significant factor in determining outrageousness.”
Worley, 1 P.3d at 629. “‘It is only natural that a defendant’s position of power over a
plaintiff may enhance his or her ability to do harm.’” Id. (citation omitted); see also
Restatement (Second) of Torts § 46 cmt. e. In fact, it was the employer–employee
relationship in Worley that pushed the misconduct over the top: the court concluded
that the facts of the case were “not outrageous in and of themselves,” but “when
considered in the context” of the employment relationship, the plaintiff’s evidence
was “sufficient” to preclude summary judgment. Worley, 1 P.3d at 630. Here, too,
the employment context bolsters Mr. Hansen’s claim.
Second, “[r]epeated harassment may compound the outrageousness of
incidents which, taken individually, might not be sufficiently extreme to warrant
liability.” Kanzler, 937 P.2d at 1343 (citation and ellipsis omitted). Here, Mr.
– 22 –
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 23
Hansen was sexually harassed over a considerable period of time.4 Most of it
occurred during the four years Mr. Hansen worked in Jackson. The two primary
harassers, Mr. Robinson and Mr. Katoa, repeatedly rubbed against Mr. Hansen,
threatened Mr. Hansen with continued sexual harassment, and demanded sexual
favors for employment benefits.
Third, Mr. Hansen has provided evidence that he was the victim of
unwelcome, non-negligible physical contact. Indeed, the physical contact at issue
here is remarkably similar to that in Kanzler, where the defendant touched and
hugged the plaintiff and, at one point, confined the plaintiff in a closet and rubbed his
crotch against her leg. Mr. Hansen has alleged Mr. Robinson and Mr. Katoa
repeatedly rubbed against him and both had, on multiple occasions, pushed Mr.
Hansen into an unoccupied room to harass him in private.
Regarding the last Kanzler factor, and when we draw all inferences in Mr.
Hansen’s favor, Mr. Hansen has also provided sufficient evidence to support a jury
4
Defendant argues that the four-year statute of limitations for IIED claims
limits our inquiry to events occurring between October 25, 2009, and October 25,
2013, when the original complaint was filed. Not so. Under Wyo. Stat. Ann. § 1-3105, an action for the intentional infliction of emotional distress must be brought
within four years “after the cause of action accrues.” See VanLente v. Univ. of Wyo.
Research Corp., 975 P.2d 594, 598 (Wyo. 1999). A cause of action for the
intentional infliction of emotional distress accrues only after the plaintiff experiences
“severe emotional distress.” See Lucky Gate Ranch, L.L.C. v. Baker & Associates,
Inc., 208 P.3d 57, 65 (Wyo. 2009) (“A cause of action accrues for statute of
limitation purposes when all elements of the cause of action are present, including
damages.”). Because it has not yet been determined whether and when Mr. Hansen
experienced severe emotional distress, our decision contemplates that the parties and
the district court will address this issue on remand. We also do not address here how
Wyoming law treats an employer’s liability for an IIED claim.
– 23 –
Appellate Case: 15-8112
Document: 01019739405
Date Filed: 12/21/2016
Page: 24
conclusion that he suffered retaliation for refusing and reporting sexually motivated
advances.
Even if this were not enough, conduct that may not otherwise be outrageous
may become so based on the actor’s knowledge that the victim is particularly
susceptible to emotional distress by reason of some physical or mental condition or
peculiarity. See Restatement (Second) of Torts § 46, cmt. f. Mr. Hansen’s tormentors
knew he suffered from PTSD, but they targeted him anyway.
In conclusion, viewing the evidence in the light most favorable to Mr. Hansen,
reasonable persons could differ as to whether the conduct was extreme and
outrageous. Consequently, the district court was wrong to dismiss Mr. Hansen’s
claim for intentional infliction of emotional distress on this ground.
CONCLUSION
We REVERSE the district court’s grant of summary judgment with respect to
Mr. Hansen’s claims for sexual harassment, retaliation, and intentional infliction of
emotional distress. We AFFIRM the district court’s grant of summary judgment
regarding the disparate treatment claim. We REMAND the case for further
proceedings consistent with this opinion.5
5
We do not express an opinion regarding quid pro quo harassment or coworker
harassment. Although the district court should have addressed Mr. Hansen's quid pro
quo and coworker harassment claims, it will have an opportunity to do so on remand.
On the evidentiary issue, we do not understand the district court’s initial exclusion of
the Doak declaration to foreclose further consideration on remand, including whether
it contains any out-of-court statements which would be excludable as hearsay.
– 24 –
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?