Gross v. Burggraf Construction Co.

53 F.3d 1531, 42 Fed. R. Serv. 479, 1995 U.S. App. LEXIS 9640, 68 Fair Empl. Prac. Cas. (BNA) 88, 66 Empl. Prac. Dec. (CCH) 43,689, 1995 WL 245847
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 25, 1995
DocketNos. 94-8054, 94-8061
StatusPublished
Cited by35 cases

This text of 53 F.3d 1531 (Gross v. Burggraf Construction 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
Gross v. Burggraf Construction Co., 53 F.3d 1531, 42 Fed. R. Serv. 479, 1995 U.S. App. LEXIS 9640, 68 Fair Empl. Prac. Cas. (BNA) 88, 66 Empl. Prac. Dec. (CCH) 43,689, 1995 WL 245847 (10th Cir. 1995).

Opinion

ALARCÓN, Circuit Judge.

Patricia Gross appeals from the order granting summary judgment in favor of Burggraf Construction Company (“Burg-graf”) and George Randall Anderson (“Anderson”), in her action for gender discrimination, filed pursuant to 42 U.S.C. § 2000e (1988 & Supp. IV 1992) (“Title VII”),1 and for wrongful discharge. During the 1990 construction season, Gross was employed as a water truck driver for Burggraf, primarily under the supervision of Anderson. [1535]*1535Gross asserts, inter alia, that Anderson embarrassed and humiliated her in front of other Burggraf employees; that he called her “dumb” and used profanity in reference to her, including calling her a “cunt”; and that he stated over the CB radio to another employee, “Mark, sometimes don’t you just want to smash a woman in the face?” Burg-graf cross-appeals from the denial of its motion to strike materials submitted by Gross in opposition to its motion for summary judgr ment.

We conclude that Gross failed to present sufficient admissible evidence to demonstrate that she was subjected to gender discrimination. We do not reach the issues raised in the cross-appeal because our independent review of the admissible evidence has persuaded us that we must affirm.

CONTENTIONS ON APPEAL

Gross seeks reversal of the order granting summary judgment. Gross frames the issues on appeal as follows:

1. Does a genuine issue of material fact exist as to whether the construction company’s supervisor harassed its female driver because of her gender?
2. Does a genuine issue of material fact exist as to whether the misconduct inflicted upon the female employee was sufficiently severe to create a hostile work environment?

Gender discrimination can based upon sexual harassment or a hostile work environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986). Gross has not asserted that she was subjected to sexual harassment, in the form of “[ujnwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” Id. (citations omitted). Therefore, there is only one issue on appeal: did the district court err in granting summary judgment because there is a genuine issue of material fact in dispute regarding whether Anderson’s conduct and statements created & hostile work environment for Gross?

PERTINENT FACTS AND PROCEDURAL HISTORY

Burggraf is a road construction company. Most of Burggraf s employees are hired on a seasonal basis. The construction season generally runs from May to October of each year. Gross drove a water truck for Burg-graf in 1989. Her employment was terminated on October 20, 1989.

Gross was hired again by Burggraf as a truck driver for the 1990 construction season. In mid-Mayi Gross was assigned to drive a water truck for the Jenny Lake Project in the Grand Teton National Park. Anderson was the supervisor of the Jenny Lake Project. He was responsible for supervising more than 100 individuals.

Gross was an hourly employee. She was subject to being released from work at any time that her services were no longer needed. Gross was initially paid $12.50 per hour for her work on the Jenny Lake Project. Toward the end of the summer, her salary was increased to $13.50 per hour. Gross worked more hours on the Jenny Lake Project than any other truck driver employed by Burggraf.

It is undisputed that Gross was laid off on October 2, 1990, because Burggraf no longer needed the services of a water truck driver on the Jenny Lake Project. Paving operations on the Jenny Lake project were commenced on September 10, 1990; the final paving was completed on October 3, 1990. As the paving operations began to wind down, the need for the water truck diminished. On September 30, 1990, Gross was sent home early because there was nothing for her to do. On October 2, 1990, Gross was informed that she was being laid off because the water truck was no longer needed for the Jenny Lake Project. The water truck was not used on the Jenny Lake Project after October 2, 1990.

On September 28, 1993, Gross filed this action against Burggraf and Anderson. In count one, Gross alleged that she was subjected to gender discrimination in violation of Title YII and retaliation because she contemplated filing a claim with the EEOC. In [1536]*1536count two, she alleged a claim of wrongful termination in violation of state law.

Burggraf and Anderson moved for summary judgment regarding both claims. On April 28, 1994, the district court granted the defendants’ motions for summary judgment based upon its determination that there were no genuine issues of material fact regarding either of Gross’ claims. Burggraf also filed a motion to strike materials submitted by Gross in opposition to its motion for summary judgment. The district court denied the motion to strike.

Gross has timely appealed from the grant of summary judgment of her claim for violation of Title VII. She has not appealed from the grant of summary judgment of her wrongful discharge state law claim. Burg-graf filed a timely cross-appeal from the denial of its motion to strike materials submitted in opposition to its motion for summary judgment.

ANALYSIS

1. Jurisdiction

As a threshold matter, we must determine whether Gross’ appeal is properly before us. Gross maintains that we have jurisdiction over her appeal pursuant to 28 U.S.C. § 1291 (1988).2 Rule 58 of the Federal Rules of Civil Procedure provides, in pertinent part that “[e]very judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided for in Rule 79(a).” 3 It is undisputed, that the district court did not enter a separate judgment in this action.

Rule 58 applies when “there is uncertainty about whether a final judgment has [been] entered.” Clough v. Rush, 959 F.2d 182, 185 (10th Cir.1992). In this case, there is no question regarding the finality of the district court’s order. By granting Burggraf and Anderson’s motions for summary judgment regarding each claim asserted by Gross, the district court disposed of the entire action. Therefore, the absence of a Rule 58 judgment does not prohibit our review of this matter. Kunkel v. Continental Cas. Co., 866 F.2d 1269, 1272, n. 3 (10th Cir.1989).

2. Gross’ Title VII Claim

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53 F.3d 1531, 42 Fed. R. Serv. 479, 1995 U.S. App. LEXIS 9640, 68 Fair Empl. Prac. Cas. (BNA) 88, 66 Empl. Prac. Dec. (CCH) 43,689, 1995 WL 245847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gross-v-burggraf-construction-co-ca10-1995.