Curran v. AMI Fireplace Co.

163 F. App'x 714
CourtCourt of Appeals for the Tenth Circuit
DecidedJanuary 19, 2006
Docket04-1362
StatusUnpublished
Cited by3 cases

This text of 163 F. App'x 714 (Curran v. AMI Fireplace Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Curran v. AMI Fireplace Co., 163 F. App'x 714 (10th Cir. 2006).

Opinion

ORDER AND JUDGMENT *

BRISCOE, Circuit Judge.

Plaintiff Amy Curran filed suit against her former employer, defendant AMI Fire *715 place Company (AMI), alleging hostile work environment sexual harassment in violation of Title VII. AMI moved for summary judgment. The district court struck as untimely Curran’s response to AMI’s motion and granted AMI’s motion. Cur-ran now appeals both of those rulings. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, affirm in part, reverse in part, and remand for further proceedings.

I.

AMI, a Wisconsin corporation with offices in Aurora, Colorado, is in the business of wholesaling and installing gas fireplaces. Curran began working for AMI at its Aurora offices as a customer service representative on January 20, 1997. She left her employment with AMI after approximately six months in order to care for her ailing grandmother. Curran returned to work for AMI as a customer representative in July 2000.

When she returned to working for AMI in July 2000, Curran received a copy of an Employee Handbook produced by AMI’s corporate parent, AWS/gb Corporation. Included in the handbook was a copy of the corporate parent’s “Freedom From Harassment” policy, which stated as follows:

We are committed to providing a work environment that is free of discrimination and harassment. In keeping with this commitment, we do not tolerate harassment of our employees by anyone, including any supervisor, co-worker, vendor, client, or customer of the Company.
Sexual harassment deserves special attention. Unwelcome sexual advances, requests for sexual favors, and other physical, verbal, or visual conduct based on sex constitute sexual harassment when:
• Submission to such conduct is made a condition of employment.
• Submission to or rejection of such conduct is used as a basis for employment decisions.
Such conduct unreasonably interferes with an individual’s work performance or creates a hostile, intimidating, or offensive work environment.

Examples of sexual harassment include, but are not limited to:

• Repeated offensive sexual flirtations, advances, or propositions.
• Innuendoes, suggestive comments, sexually oriented “kidding,” jokes about gender-specific traits, or foul or obscene language or gestures.
• Displays of foul or obscene printed or visual material.
• Unwelcome and unnecessary physical contact, such as patting, pinching, or brushing against another’s body.
All company employees are responsible for creating an atmosphere free of discrimination and harassment, sexual or otherwise. If you feel you have experienced or witnessed harassment, notify the Human Resources Manager immediately. If you believe it would be inappropriate to discuss the matter with the Human Resources Manager, report the problem to your supervisor or the President.
Every reported incident of employee harassment is thoroughly investigated, with respect for the confidences and sensitivities of the situation. If it is determined that sexual harassment has occurred, appropriate disciplinary action *716 will be taken, up to and including termination.
The Company prohibits any form of retaliation against any employee for filing a bona fide complaint under this policy or for assisting in a complaint investigation.

Aplee.App. at 49-50.

Curran’s job duties included overseeing the day-to-day operations of the service department. Curran was also responsible for keeping track of the whereabouts and daily activities of Glenn Payson, who was AMI’s Service Manager and had direct supervision over the customer service department, including Curran’s position. Payson was in the office each morning, but otherwise spent approximately eighty percent of each working day out of the office. Although Curran did not consider Payson her manager, she took orders from him on a regular basis (since, as noted, he was in charge of the customer service department).

In August 2000, approximately one month or less after she returned to working for AMI, Payson began making sexually-related comments in front of, or directly to, Curran. Curran did not keep a journal of the comments, nor does she remember specific dates of when comments were made. She does, however, remember the specifics of several of the comments. First, Curran recalls Payson standing beside her desk, looking directly at her, and having a conversation with another man across the office “about having sex with a sheep and saying, Wouldn’t that be great?” Aplee. App. at 24. Second, Curran recalls Payson making “lots of comments ... about [her] breasts,” including saying “that they [her breasts] were bigger than the last time that [she] worked” for AMI, and that he would like to lay his head on her breasts and have her comfort him. Id. Third, Curran recalls coming to work one day with boots on, and Payson “kind of whistling at [her] and ... saying how good [her] boots looked,” and calling them “CFM boots.” Id. When Curran looked at Payson “like [she] didn’t know what he was talking about,” he laughed and said they were “Come-fuck-me boots and said that he would do [her].” Id.

According to Curran, she complained about Payson’s comments, beginning in August 2000, to both Terry Manzanares, AMI’s Office Manager, and AMI’s General Manager, Bruce Brown. 1 App., Doc. 2 at 5; Aplee. App. at 25. Brown allegedly assured Curran on each such occasion that he would “take care of it.” Aplee. App. at 25. Brown, in turn, verbally reprimanded Payson for his conduct, either by telephone or in person. It is disputed how many times Brown reprimanded Payson. AMI contends there were only two such reprimands. Curran alleges there were at least three.

Each time that Curran would complain and Brown would reprimand Payson, Pay-son would refrain for approximately a week to ten days from making sexually-related comments to Curran. Payson would, however, “walk around and be mad at [Curran],” accusing her “of not performing,” threatening to write her up, and sometimes clocking her out when she was, in fact, at work. Aplee. App. at 25, 33. And, ultimately, Payson would begin making inappropriate comments to Curran again. 2

*717 On January 16, 2001, Tammy Weaver, one of Curran’s co-workers, sent an anonymous letter to AMI’s corporate headquarters in Wisconsin complaining about Payson. Weaver’s anonymous letter prompted an investigation which resulted in Payson’s termination from employment with AMI on January 24, 2001. 3

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Bluebook (online)
163 F. App'x 714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/curran-v-ami-fireplace-co-ca10-2006.