Burns v. Granite School District
Filing
28
MEMORANDUM DECISION AND ORDER granting 17 Motion for Summary Judgment. Signed by Judge Dale A. Kimball on 10/14/11 (alt)
______________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
JAMES A. BURNS,
Plaintiff,
MEMORANDUM DECISION
AND ORDER
v.
Case No. 2:10CV179DAK
GRANITE SCHOOL DISTRICT,
Judge Dale A. Kimball
Defendant.
This matter is before the court on Defendant Granite School District’s Motion for
Summary Judgment and Plaintiff’s Motion and Memorandum in Opposition to Defendant’s
Motion for Summary Judgment, Motion to Strike, and Motion in Limine. On September 28,
2011, the court held a hearing on the motions. Plaintiff was represented by Michael D. Bassett,
and Defendant was represented by Akiko Kawamura. At the conclusion of the hearing, the court
took the motions under advisement. Having fully considered the motions, memoranda,
affidavits, and exhibits submitted by the parties and the facts and law relevant to the motions, the
court enters the following Memorandum Decision and Order.
BACKGROUND
Plaintiff James A. Burns is currently a fifth grade teacher at Oquirrh Hills Elementary
School. He has been employed with Granite School District (“the District”) since 2003. Burns
brought this complaint alleging gender and age discrimination in connection with his October
2007 application for several vice principal and principal openings within the district, and
asserting hostile work environment and retaliation with respect to the conduct of his supervisor at
Oquirrh Hills Elementary, Principal Jane McClure. At the September 28, 2011 motion hearing in
this case, Plaintiff withdrew his retaliation claim.
After working for federal law enforcement, the United States Postal Service, and the
Department of Homeland Security for many years, Burns decided to pursue a teaching license
through Alternative Route to Licensure. Burns began working as a substitute and contract
teacher for the District in 2003. In the fall of 2004, the District hired him as a fifth grade teacher
at Oquirrh Hills, and he has been employed in that position since that time. At the time he was
hired, his supervisor was the Principal at Oquirrh Hills, Jane McClure. She continued to be
Oquirrh Hills’ principal until she was replaced by Vicki Ricketts in 2007.
In October 2007, the District advertised openings for Elementary Principal, Elementary
Vice-Principal, Junior High Principal, and Secondary Vice-Principal. Burns applied for all of the
positions with one application. The District received 101 applications for the positions. All
applicants for the positions participated in an initial screening process that included four steps:
(1) threshold screening of application and resume for minimum requirements; (2) Gallup
Principal Insight Leadership Examination; (3) writing assessment; and (4) two confidential
supervisor ratings. Each step was given points and applicants had to score above 240 to proceed
past the initial screening process to the second round of the application process.
Burns scored 77 points on his Gallup Principal Insight Exam, received a 2 on his writing
sample, and received a 54 out of 100 rating from Jane McClure and a 74 out of 100 rating from
Vicki Ricketts on his supervisor ratings. His total score was 207, which fell below the 240 point
threshold to proceed to the second round for an interview.
Burns initially identified two other individuals who were appointed to administrative
2
positions as similarly situated candidates. However, the second individual did not apply in the
2007 pool and Burns has ceased arguing that he is similarly situated. The other person, Tysen
Fausett, was also a teacher at Oquirrh Hills who applied for the administrative positions in 2007.
Fausett scored a 59 on his Gallup Principal Insight Exam, received a 3 on his writing sample, and
received a 96 and 100 on his supervisor ratings. Fausett was rated by Vicki Ricketts and a
principal from another school where he worked. Fausett was not rated by Jane McClure even
though she would have been his second most recent supervisor. The District admits that the
ratings were done by the two most recent supervisors. But, in Fausett’s case, McClure was
skipped and a previous supervisor did the rating. The District states that this must have been an
oversight or error in sending out the request for the supervisor ratings. Fausett was 35 years old
when he applied for the administrative positions. He proceeded through the application process
and was successful in obtaining a position as Assistant Principal at Copper Hills Elementary.
During Burns’ first year of teaching at Oquirrh Hills, he began dating a coworker, Pat
Crosby, who was a Title I aide. Burns and Crosby did not tell anyone at the school that they were
dating. However, they announced their engagement on the last day of school for the 2004-05
school year. Burns alleges that after this announcement, Principal Jane McClure began treating
him differently. He claims that she became much more critical of his work and was “nitpicking.”
He believes that she was a “woman scorned.”
During Burns’ first year at Oquirrh Hills, he states that he was friends with Principal
McClure. He testified that both McClure and the school’s Title I director, Sherrie Spenst, were
both very interested in him. He believes that they wanted to date and/or marry him. His belief
that they wanted to date and/or marry him is based on how friendly they were with him and their
weekly inquiries into what he was doing over the weekend. He states, however, that they never
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asked him on a date. Nonetheless, he had “no doubt in his mind” where the question regarding
what he was doing over the weekend was going.
Burns testified that during his first year at Oquirrh Hills, he spent a lot of time with
McClure. In addition to the regular work day, they both attended several training meetings, and
went on a teacher training trip to San Diego. He stated that they talked a lot and McClure made
comments about her “nonexistent sex life and social life.” Burns also alleges that McClure made
frequent comments that he considered to be common “man digs,” such as “men don’t cry, men
don’t care.” Burns also testified that another teacher told him that McClure told inappropriate
jokes about men. He states that the other teacher told him some of the jokes, but he could not
remember any of them. McClure did not tell the jokes to Burns.
In addition, Burns states that McClure would comment on and point out other men’s tight
pants. Burns explained that she would say that they shouldn’t wear them and loser pants would
be more appropriate. But he believed that by pointing them out, she liked looking at them. He
also stated, “I knew where she was going. She was looking at the private parts.”
Burns also points out that one day he wore sandals to work and McClure mentioned that
he had long toes. He claims that she was quite interested in his toes even though he thinks they
were normal length toes. He believes that “where she was going” with her comment about long
toes was that other parts of his body would be long as well. He contends that he knew her well
and she didn’t need to say it for him to understand where she was going with her comment.
At the San Diego conference that McClure and Burns attended with a group of teachers
from the school, Burns says that she was “always there” and he could not “shake her.” She was
at every training and next to him at every meal. McClure testified that she probably did sit next
to him, but that she sat next to most of the teachers. Other than her allegedly constant presence,
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Burns does not allege any specific conduct on McClure’s part during this trip that was
inappropriate.
One of the other fifth grade teachers testified that she thought both McClure and Spenst
were interested in Burns. She stated that it was based on her own belief, “hall talk,” and the fact
that McClure was single.
After Burns announced his engagement, he claims that his relationship with McClure
went from light to dark. He states that during his second year of teaching, she was very critical
of his performance. She gave him notes and began nitpicking, such as inquiring whether he had
been at recess duty and telling him that he was letting students bring too many toys to school.
Burns also claims that she would yell at him. However, he also testified that she was critical of
many teachers and yelled at all the teachers at staff meetings. He testified that she got rid of
teachers every year, men and women. Many of the teachers testified that she was critical of
nearly all the teachers. Rhonda Hunsaker, a fourth grade teacher, testified that “[e]verybody was
scared to death of [McClure]” because “[s]he was just very direct and up front. And if you didn’t
do it her way, she would scream at you for it.” McClure testified that she tried to be supportive
of teachers during their first year and then gave more criticism in subsequent years.
Another fifth grade teacher, Teresa Beardall, testified that she thought McClure changed
with respect to everyone the year Burns returned to school married. In response to being asked
how the school environment changed for Burns the year he returned married, she stated that “[i]t
changed for all of us. . . . I really believe that it changed for fifth grade in general. . . . Things –
that bubbly friendliness from Jane and Sherrie was – they weren’t as outgoing towards me, and
definitely towards Jim, too.”
When asked about McClure’s harassment, Burns identified only the criticism: “Q. So it
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wasn’t harassment of a sexual nature? A. Oh, no. No, no, no. It all went back to the last day of
that school year of 2005. It changed from light to dark. It was sexual harassment. She was – she
was a scorned woman.” Burns states that he reported McClure’s conduct to her supervisor, Rob
Averett at the District. His complaints to Averett were with regard to McClure’s criticisms of his
work performance.
As a result of Burns’ marriage to his coworker, Burns testified that the Title I director
reassigned his wife to the kindergarten hall because she had back problems that made it more
difficult for her to work with small children. After the engagement announcement, McClure
called the district regarding any policies regarding husband and wife working in the same school.
She was told that there was no policy prohibiting it, but that it would be a good idea to have them
work in different halls.
McClure was not Burns’ supervisor in 2007 when she did her supervisor evaluation for
his application for the administrative openings. The Oquirrh Hills principal at the time of his
application was Vicki Ricketts. McClure testified that she gave Burns a fair review. She
acknowledged that the review was hypothetical in nature because she had not observed him in an
administrative capacity, but that she had to look at the characteristics he had as a teacher and try
to apply them to how he would do as an administrator. She stated that she considered skills such
as his ability to get along with people, taking criticism, classroom management skills, and
effective teaching. She believed that he was a mediocre candidate and deserved a mediocre
rating.
Burns claims that Ricketts, who was his current supervisor at the time of his application,
had not worked with him long enough to give a valid evaluation. However, she testified that she
had experience with him during his internship and that she had observed him in the classroom
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and with staff during the first two months of the 2007-08 school year. Burns contends that
Rickett’s evaluation was contrived because it was not dated or stamped as received by the
District. He testified, “there’s no doubt in my mind that Rob Averett [the District’s Director of
Resource Development] or Mike Fraser [the District’s Former Director of Human Resources]
called her up and told her we need an evaluation to support Jane McClure’s low evaluation of
Jim Burns to where we can get him out of this system, this process of being chosen for a
principal. Not a doubt in my mind about that.”
It was customary, however, for the District to get the evaluations of the applicant’s last
two supervisors. Ricketts testified that she gave Burns “an average score” because “he was
average in doing those things.” It was an overall impression she had of him based on her
observations of him during his internship, in the classroom, and with staff. Rickets testified that
she considered his decision-making skills, things that go on in the day-to-day running of the
school, following the school discipline plan, and “those sorts of things.” She also testified that
Burns lacked the ability to collaborate with his teammates.
Burns initially raised an issue regarding a letter from parents in connection with his
retaliation claim. However, he decided to withdraw his retaliation claim. He continues ot
believe, however, that the letter is evidence relevant to his hostile work environment claim. The
letter in question was sent to the District in September 2010, by two parents who were
complaining about Burns’ treatment of their son, a resource student. Someone from the District
investigated the complaint. As a result of the complaint, the district issued a non-disciplinary
letter to Burns. Burns believes that the parent complaint was authored by Sherrie Spenst for the
parents to sign. However, both parents testified in their depositions that they wrote the letter
themselves.
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DISCUSSION
The District’s Motion For Summary Judgment
The District moves for summary judgment in its favor on all of Burns’ causes of action.
As stated above, Burns withdrew his retaliation claim at the hearing on this motion. The court
will address each of Burns’ other causes of action in turn.
I. Burns's Gender and Age Discrimination Claims
Burns alleges that he was discriminated against in violation of Title VII of the Civil
Rights Act of l964 ("Title VII") and the Age Discrimination in Employment Act (the "ADEA")
based on his gender and his age. Both parties agree that the burden-shifting analysis set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to these claims. See
McDonnell Douglas, 411 U.S. at 802-05; Riggs v. Air Tran Airways, Inc., 497 F.3d 1108, 1118
(10th Cir. 2007).
A. Gender Discrimination
The District contends that Burns fails to state a prima facie case of reverse gender
discrimination. The Tenth Circuit has held that in a reverse discrimination case, the plaintiff
“must, in lieu of showing that he belongs to a protected group, establish background
circumstances that support an inference that the defendant is one of those unusual employers who
discriminates against the majority.” Argo v. Blue Cross and Blue Shield, Inc., 425 F.3d 1193
(10th Cir. 2006) (citing Notari v. Denver Water Dep’t., 971 F.2d 585, 589 (10th Cir. 1992)).
Burns identifies Fausett as the individual who was treated more favorably in the
application process. Since the comparator is male, his appointment is not evidence of gender
discrimination. Additionally, the evidence demonstrates that Burns was not interviewed because
his preliminary scores were too low. It is thus apparent Burns was eliminated from consideration
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based on objective, legitimate, and non-discriminatory criteria. Burns claims that his score was
too low because of McClure’s low supervisor rating. But there is no evidence that McClure's
mediocre evaluation is related to Burns' gender. Burns argues that she preferred one of the other
male applicants. That is not evidence of gender discrimination.
Burns also alleges that McClure gave him a low evaluation score because she felt scorned
when he married Pat Crosby, another woman at the school. However, there is no evidence of that
other than Burns’ belief. McClure gave reasons for her scores. And, even if McClure’s scores
had been the same as Ricketts, Burns would not have met the threshold.
It is clear from Burns’ own testimony that Principal McClure did not discriminate against
Burns based on gender while she was his supervisor. Burns testified that McClure did not single
him out for criticism. Rather, Burns contends it was McClure’s “modus operandi” to criticize
teachers for their performance and “[get] rid of about three teachers a year.” Burns also contends
he was “the only man,” indicating that female teachers were often criticized by McClure. Thus,
according to Burns, McClure’s criticism was neither directed towards Burns nor males in
general.
The fact that McClure became more critical of his performance in his second year does
coincide with Burns' marriage to Crosby. However, the other teachers testified that she treated
him like she treated many other teachers. In fact, she treated him like she treated many of the
women teachers. The other fifth grade teacher, who was a woman, testified that McClure began
treating her differently that year as well. That teacher said that she was cold and more
professional. Being cold and professional is not evidence of discrimination.
Burns refers to McClure as a woman scorned, but his belief that she was interested in him
before he got married is not supported by any of the objective evidence in the case. Asking
9
someone about their weekend plans does not demonstrate a desire to go on a date or to get
married. It is only Burns’ subjective opinion that McClure was interested in him. And, the
alleged "scorned woman" behavior was two years before the application process.
Burns’ argument that Ricketts’ evaluation was not fair because she had only known him
for two months is not probative of discrimination. In addition, Fausett, Burns’ similarly situated
male, would have been in the same position. Burns also claims that Ricketts’ evaluation was
contrived to be like McClure’s and to get him out of the process. However, there is no evidence
to support his contention.
Burns, therefore, fails to demonstrate evidence of gender discrimination during the
application process or while he worked with McClure. Accordingly, the District is entitled to
summary judgment on Burns’ gender discrimination claim.
B. Age Discrimination
The District next asserts that Burns has not established that he was the subject of age
discrimination. The parties agree that to establish an age discrimination claim, Burns must meet
the requirements for a prima facie case of disparate treatment. To establish a prima facie case of
disparate treatment, Burns must show (1) he is a member of a protected class, (2) he was
subjected to an adverse employment action, and (3) similarly situated employees were treated
differently. Trujillo v. Univ. of Colo. Heath Sci. Ctr., 157 F.3d 1211, 1215 (10th Cir. 1998). In
an age discrimination case, the complainant must prove not only that age was considered but also
that age made a difference in the outcome of the employer’s decision. See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 141 (2000).
The District acknowledges that Burns is a member of a protected class for purposes of an
age discrimination claim because he was over the age of 40 in 2007 when he applied for the
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administrative openings. Burns was 63 years old at the time. However, the District contends that
Burns cannot state a prima facie case because he suffered no adverse action and was not treated
differently from similarly situated candidates for the administrative positions.
The parties dispute whether Burns was subjected to adverse action when he applied for
but was not selected for any of the administrative openings. The Tenth Circuit defines “adverse
action” liberally, and the question is determined on a case-by-case basis. Heno v. Spring/United
Mgmt. Co., 208 F.3d 847, 857 (10th Cir. 2003). To be adverse, the challenged action must be a
significant change in employment status, such as “hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing significant change in benefits.”
Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
Despite his failure to obtain one of the administrative openings in 2007, the District
points out that Burns has maintained his job as a fifth grade teacher at Oquirrh Hills Elementary
School with full benefits and salary increases and his employment status with the District was not
diminished in any way. The District also argues that a change from being a teacher to being an
administrator is not a failure to promote because the two are distinct jobs requiring different
credentials.
Nonetheless, Burns was not selected for the administrative positions position and his nonselection falls within the adverse action of “hiring.” Despite the fact that he had already been
hired by the District as a teacher, he was seeking to be hired as an administrator. As the district
stated, the position of “teacher” and “administrator” are separate and distinct. The court
concludes, therefore, that Burns has established that he was subjected to an adverse action when
he was not hired for one of the administrative openings in 2007.
The issue with respect to Burns’ age discrimination case, therefore, is whether he has
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demonstrated that similarly situated individuals were treated differently based on age. When
asked on deposition for evidence of age discrimination, Burns testified, “Well, because I was the
oldest male at the school, and one of the - I’m sure had to be one of the oldest males applying for
the position.” Burns states that Fausett is a similarly situated applicant who was successful in
obtaining one of the administrative openings and allegedly treated differently. Burns was 35
years old at the time. Burns and Fausett were in the same applicant pool and subject to the same
criteria. They were also both teachers at Oquirrh Hills Elementary. Even though part of the
initial screening process was to get supervisor ratings from the applicants two most recent
supervisors, Fausett’s supervisor ratings did not include McClure. Instead of sending the
evaluation to McClure, the District sent the evaluation to Fausett’s prior supervisor. Burns
argues that this shows that Fausett was treated differently.
Burns asserts both that McClure favored Fausett because he was younger and that the
District did not have her rate him because they favored Fausett. If McClure favored Fausett
because he was younger, then Fausett was potentially disadvantage by the fact that the District
sent his evaluation to his previous supervisor. In addition, whether McClure favored Fausett
because he was younger is irrelevant given that she did not do a supervisor rating for him.1
1
Burns also argues that "[b]y hating the Plaintiff, McClure clearly preferred
Fausett, who is a younger man." This, he claims, is disparate treatment on the basis of age.
Burns, however, does not cite to anything but his own subjective belief that McClure hated him.
Other teachers testified that she was generally critical of all the teachers, and one teacher said that
she was not as warm and friendly to Burns his second year. She testified that McClure was cold
and professional to the whole fifth grade. Burns further argues that McClure preferred Fausett
because she went to his sons’ baptisms, allowed Fausett to attend the San Diego LDS Temple
when they were in San Diego, and she did not yell at Fausett. However, none of these alleged
preferences relate to Fausett's age. Several of the teachers states that McClure could be heard
yelling at various teachers in her office. But her yelling has not been tied to an animus against
older teachers. And, there is no evidence that she singled out Burns because of his age. Because
McClure did not evaluate Fausett for the administrative openings, there is no evidence that
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Next, Burns also appears to argue that the District gave Fausett an advantage because it
did not have McClure rate him. There is evidence that McClure was critical of all her teachers
and that may support an argument that Fausett’s rating would have been lower from McClure
than the supervisor who rated him. However, Burns presents no evidence that the District
purposely sent Fausett’s supervisor rating to a different supervisor. The only evidence in the
record is that the supervisor rating was mistakenly sent to a previous supervisor. Most
importantly, Burns has not demonstrated how this mistake was related to his age or Fausett’s age.
Therefore, even though Fausett did not have his two most recent supervisors evaluate him, there
is no evidence that the different treatment was related to age.
Burns argues that the evaluation by Ricketts was not fair because she had only worked
with him for two months. However, as stated above, Fausett would have been in the same
situation. By sending evaluations to applicants two most recent supervisors, many of the
applicants could have been in the position of having a new supervisor provide a rating. The fact
that Ricketts had only been Burns’ supervisor for two months when she provided the rating is not
indicative of age discrimination.
Burns argues that he scored highest on the Gallup screener exam, but was not given an
interview. In making this argument, however, he neglects to address the fact that the gallup
screener exam was only one of four factors evaluated in the first round of the application process.
He ignores the fact that Fausett got a higher score on the writing assessment. He has not
demonstrated that he was obviously a superior candidate to Fausett.
The evidence shows that the initial screening process was done according to set criteria.
McClure preferred Fausett and, even if she did, it did not impact the application process.
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All 2007 exams were electronically scored on a 1 to 100 point scale. The writing assessments
were graded by two teams of educators on a scale of 0 to 3 (3 = Exemplary, 2 = Satisfactory, 1 =
Below Average, 0 = Unsatisfactory). Writing assessments were identified by an assigned number
so the evaluators were not able to identify the authors. Kevin Hague and Mike Fraser collected
and reviewed all of the applicants’ scores. Applicants who scored 80% or higher, at least 240
points, advanced to the second round for an interview. Burns’ total score of 207 fell below the
threshold for an interview. Fausett, however, had a total score of 258 and qualified for an
interview.
Burns argues that Fausett's experience as a Mormon bishop was considered as managerial
experience, whereas his 32 years of experience in various government service positions was not.
Burns argues that Fausett's experience as a bishop was considered because one of the
interviewers wrote "Mormon bishop" on the interview notes. However, Burns did not have an
interview. Therefore, the failure to consider his managerial experience is only a factor of his not
making the interview round of the process. No prior management experience was considered in
the first round of the application process.2
Burns raises other issues about improper considerations during the interview process.
However, Burns did not qualify for an interview because he did not meet the minimum score
required by the initial screening. Therefore, even if improper considerations were given to
2
Moreover, Burns states that one of the District employees testified that he thinks that it
would be inappropriate to consider experience as a Mormon bishop. However, there is no
evidence that the interviewer who made the notation actually considered his ecclesiastical
experience or that the notation was to Fausett’s advantage or disadvantage. At most, it
demonstrates that Fausett told the interviewers of the experience. Because someone noted
“Mormon bishop" on Fausett's interview notes, Burns argues that consideration of Fausett's
experience as a bishop is a pretext for discrimination. Burns does not explain how this
demonstrates age discrimination.
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Fausett or others during the interview round, it is not evidence of age discrimination against
Burns. The court concludes that Burns has not demonstrated a prima facie case of age
discrimination.
Although the court concludes that Burns has not demonstrated a prima facie case of age
discrimination, Burns also argues that he has demonstrated pretext because two of the District
employees he deposed gave conflicting answers as to why Burns was not selected for the
administrative openings. Bates testified that Plaintiff did not succeed because of his low
supervisor ratings. On the other hand, Fraser testified that Burns did not succeed because his
comprehensive score was too low to proceed to the next round. While Burns claims that they are
inconsistent, the District rightly points out that they are not. Burns' low supervisor evaluation
scores made his comprehensive score too low to proceed to the interview round. There is
nothing inconsistent about the reasons provided for his failure to advance in the application
process. Burns' argument, therefore, does not demonstrate pretext. Accordingly, the court
concludes that the District is entitled to summary judgment on Burns’ age discrimination claim.
II. Sexual Harassment--Hostile Environment Claim
The District also moves for summary judgment on Burns’ sexual harassment claim. To
establish that a sexually hostile work environment existed, Burns must prove the following
elements: (1) he is a member of a protected group; (2) he was subject to unwelcome harassment;
(3) the harassment was based on sex; and (4) due to the harassment's severity or pervasiveness,
the harassment altered a term, condition, or privilege of the plaintiffs employment and created an
abusive working environment. Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007).
Burns argues that McClure created a hostile work environment after he announced his
marriage to a coworker, leading up to his non-selection for the administrative positions.
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McClure, however, was not his supervising principal at the time he applied for the administrative
openings. She could have only created a hostile work environment while she was the principal at
Oquirrh Hills.
Burns’ claim fails to meet the third element of a hostile environment sexual harassment
claim–that the harassment be based on sex. Hostile work environment claims are not a general
civility code, the claim must be tied to sexual harassment. Burns testified that the harassment
was not sexual in nature, only criticisms of his performance. Burns alleges that McClure began
to nitpick his performance because he married another woman at the school. But a heightened
criticism of his performance is not prohibited by Title VII. Moreover, Burns testified that
McClure was critical of all the teachers and she repeatedly drove both male and female teachers
out of the school. Therefore, the court concludes that Burns has not demonstrated that the hostile
environment was based on sex.
The parties have addressed the severe and pervasive prong under three general categories:
(1) McClure’s alleged interest in Burns; (2) McClure’s alleged sexually charged comments; and
(3) McClure’s heightened criticism of his work after he married a co-worker. First, there is no
direct evidence that McClure was interested in Burns. Burns claims that she was because she
looked at him with interested eyes and asked him about his plans for the weekend. He
considered her asking about his weekend plans to be implied marriage proposals. Burns testified
that there was 'no doubt in his mind" where she was going with their relationship. However, he
admits that she never directly stated that she had any interest in him and never asked him on a
date. Burns also stated that McClure was “always there” when they went to a teacher training in
San Diego. However, all of these things amount to Defendant’s subjective belief that she may
have been interested. Another teacher testified that based on hallway talk and in her opinion,
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McClure appeared interested in Burns. However, McClure never stated anything to him that
would indicate interest and never asked him on a date. There is no basis for finding a severe and
pervasive hostile work environment under these facts.
Second, claims that the hostile environment was severe and pervasive based on
McClure’s comments. Burns states that McClure made comments about men’s tight pants and
the length of his toes. The comments themselves do not demonstrate sexual harassment. Only
Burns’ belief in where the comment “was going,” makes them sexual in nature. McClure
allegedly made random criticisms of men, but there is no evidence that those comments were so
frequent as to be severe or pervasive. In addition, Burns claims that McClure told other teachers
jokes about men. But, importantly, she never told them to Burns. Therefore, the jokes did not
contribute to a hostile environment for Burns.3
Third, Burns claims that McClure became more critical of his performance after his
marriage because she was a scorned woman. As stated several times before, Burns testified that
she was critical of all the teachers. Other teachers stated that she had a harsh style and wanted
things done her own way. Burns was not singled out for critical treatment. Criticism from a
3
Burns’ string of arguments in his briefing regarding McClure’s conduct seriously
distorts the record. The court cautions Burns’ attorney to be more careful in his references to
deposition testimony. The testimony regarding short skirts and being able to see someone's
crotch was in regard to another teacher at the school, not McClure. Burns testified that the sexual
jokes were made to another teacher, not to him. Burns did not testify that McClure ever stated
the word "package" or that tight pants made her excited. Burns testified that she said the tight
pants were inappropriate and they should wear loser pants. It was Burns who testified that he
believed that "where she was going with it" was that she was looking at their “package” and
excited by it. That was his subjective belief of what she may have been thinking, not what she
said. In addition, he did the same thing with the “long toes” incident. Burns testified that
McClure only stated that he had long toes. It was Burns who testified that where he thought she
“was going with it” was that other parts of his body would also be long. Counsel must be careful
to attribute the right statements, beliefs, and conduct to the right person, especially in a case
involving or alleging such personal matters.
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direct supervisor is not actionable. As observed by the Tenth Circuit Court of Appeals, “Normal
job stress does not constitute a hostile or abusive work environment . . . [F]ederal law ‘does not
guarantee a utopian workplace, or even a pleasant one . . . [P]ersonality conflicts between
employees are not the business of the federal courts . . ..’” Trujillo, 157 F.3d at 1211, 1214 (10th
Cir. 1998) (citing Vore v. Indiana Bell Tel. Co., 32 F.3d 1161, 1164 (7th Cir. 1994)).
The court concludes that Burns has not established a sexual harassment hostile
environment claim because the alleged conduct was not based on sex and the alleged conduct
was not sufficiently severe or pervasive to alter the terms and conditions of his employment.
Accordingly, the court grants the District’s motion for summary judgment on Burns’ sexual
harassment claim.
Burns’ Motions to Strike and for Sanctions
I. Motion to Strike Overlength Portion of Summary Judgment Brief
The court ruled at the hearing that Burns erroneously concluded that the District's
summary judgment brief was overlength because it was a total of 35 pages. However, as the
court explained, under this district’s local rules, the fact section does not count toward the 25page limit. Therefore, the District's brief is well within the 25-page limit and it did not need
leave to file an overlength memorandum.
II. Motion to Strike Delaration of McNeil-Waters
The court also denied this motion to strike at the hearing. Burns argues that the
declaration should be stricken because the District did not identify McNeil-Waters as a person
with discoverable information and, therefore, he did not depose her. The District, however, used
her declaration only to enter the District's business records because she is the District's current
custodian of records. She does not have discoverable information and there is no basis for
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striking her declaration.
III. Sanctions for Spoliation
Burns argues that the District should be subjected to sanctions in this case because it
destroyed some of its documents regarding the application process. At a deposition conducted a
day after the close of discovery, Burns’ counsel verbally requested the applicant files of the
eleven successful candidates who were selected for the administrative openings in 2007. The
District only retained the complete files of Burns and Fausett and a spreadsheet compilation of
the scores from the initial screening process.
The electronic record of all the applicants’ scores were produced to Burns on a
spreadsheet, which shows that the successful applicants scored higher than 240 in the initial
round. If Burns seeks to argue other candidates were treated differently based on their scores, the
spreadsheet contains those scores. The material facts are that the District set the threshold score
at 240 points and Burns failed to reach that score. Burns was eliminated from the selection
process based solely on his score. Thus, it does not matter what other candidates scored.
The District retained the complete files of Burns and Fausett because Burns’
administrative complaint identified Fausett as someone similarly situated. Fausett continues to
be the applicant Burns contends is similarly situated. Therefore, the non-disclosure of the other
applicant files is harmless. Accordingly, the court denies Burns’ request for sanctions against
the District.
CONCLUSION
Based on the above reasoning, Defendant’s Motion for Summary Judgment is
GRANTED, and Plaintiff’s Motion and Memorandum in Opposition to Defendant’s Motion for
Summary Judgment, Motion to Strike, and Motion in Limine is DENIED. Because this ruling
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disposes of all of Plaintiff’s claims, the Clerk of Court is directed to enter judgment for
Defendant and the close the case. Due to the particular circumstances presented by the case, the
court finds that each party shall bear his and its own fees and costs. Although Defendant has
prevailed on summary judgment, the court finds that Plaintiff’s case was not frivolous,
unreasonable, or without foundation. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 42122 (1978).
DATED this 14th day of October, 2011.
BY THE COURT:
DALE A. KIMBALL
United States District Judge
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