F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 19 1999 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk
JENNIFER C. MILLER,
Plaintiff-Appellant,
v. No. 98-1012 (D. Colo.) REGENTS OF THE UNIVERSITY OF (D.Ct. No. 95-S-2929) COLORADO; JAMES CORBRIDGE,
Defendants-Appellees. ____________________________
ORDER AND JUDGMENT *
Before BRORBY, HOLLOWAY, and BRISCOE, Circuit Judges.
Appellant Jennifer Miller brought this action against her former employer
the Regents of the University of Colorado (“the University”) and her former
supervisor James Corbridge alleging sex discrimination in violation of Title VII
of the Civil Rights Act of , 42 U.S.C. §2000e et seq. , and 42 U.S.C. § 1983. The
district court granted summary judgment in favor of the University and Mr.
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Corbridge. Ms. Miller now appeals that ruling and various discovery limitations
imposed by the district court. We have jurisdiction pursuant to 28 U.S.C. § 1291
and affirm.
I. Background
Ms. Miller served as an assistant to Mr. Corbridge, the then Chancellor of
the University’s Boulder campus. During her tenure in the Chancellor’s office,
Ms. Miller alleges Mr. Corbridge subjected her to both quid pro quo and hostile
work environment sexual discrimination. The alleged harassment began shortly
after she started work in 1988, when Mr. Corbridge “leered” at her as she walked
down a public hallway. Shortly thereafter, Mr. Corbridge asked Ms. Miller out
for drinks on at least two occasions and invited her to attend “Friday Afternoon
Club” social gatherings at the law school on five to ten occasions. Ms. Miller
declined all invitations. Mr. Corbridge stopped extending invitations to Ms.
Miller by early 1989. Further, Ms. Miller claims Mr. Corbridge touched her in
ways she found inappropriate, including hugging her twice ( id. at 153-57),
standing behind or beside her so closely that their bodies touched on several
occasions, and rubbing her back and shoulders a few times. All the allegedly
inappropriate touching ended by fall of 1993. Ms. Miller also contends Mr.
Corbridge harassed her by requiring her to place phone calls and make
-2- appointments with various female acquaintances and, on at least three occasions,
asking her to chill wine for after work meetings. Ms. Miller admits Mr.
Corbridge never made any overt requests for sexual favors. However, she
contends that because she rebuffed his sexual overtures, Mr. Corbridge verbally
harassed and humiliated her in front of other employees and reassigned some of
her job duties to other employees. At the same time, Ms. Miller claims more
“compliant” female employees did not suffer such treatment and, in some cases,
Mr. Corbridge allegedly rewarded those women with job benefits. Mr. Corbridge
resigned as Chancellor effective August 1, 1994. Shortly thereafter, Ms. Miller
took an extended leave of absence and eventually resigned from the University in
April 1995.
In addition to the conduct Mr. Corbridge allegedly directed at her, Ms.
Miller also points to Mr. Corbridge’s treatment of other female employees as
proof of sexual harassment. Some of the alleged incidents Ms. Miller claims she
witnessed during her employment, and others she discovered only after filing this
suit. Ms. Miller claims she personally witnessed the following events during her
employment:
(1) Mr. Corbridge frequently called and met with three female University
employees, Ms. Marie Caldwell, Ms. Lisa Vann and Ms. Mary Jo White.
-3- Ms. Miller often placed the calls and arranged the meetings with these
women and she surmised Mr. Corbridge had sexual relationships with them.
However, Ms. Miller admits she had no personal knowledge of any such
relationship during her employment, never overheard Mr. Corbridge’s
phone conversations with the women, and never observed any of their
meetings.
(2) Mr. Corbridge frequently called and met with Ms. Pauline Hale, the
University’s Director of Public Relations. Ms. Miller claims she knew Mr.
Corbridge was having a sexual relationship with Ms. Hale because they
traveled together and lived together. Mr. Corbridge and Ms. Hale married
in 1992. Mr. Corbridge required Ms. Miller to assist in planning their
wedding.
(3) Mr. Corbridge touched Ms. Jane Branigan, an employee in the
Chancellor’s office, on the face and hair on one occasion. Ms. Miller also
learned that Mr. Corbridge and Ms. Branigan had drinks after work once.
(4) Mr. Corbridge leered at and touched other women throughout Ms.
Miller’s tenure in the Chancellor’s office. Ms. Miller cannot specify the
dates on which these incidents occurred or what women they involved.
(5) Ms. Susan Hobson-Panico, a University employee, told Ms. Miller that
Mr. Corbridge kissed her during a break in a Regent’s meeting. Ms. Miller
-4- did not personally witness the alleged kiss.
The evidence Ms. Miller learned about through discovery but had no personal
knowledge of during her employment includes:
(1) Ms. Caldwell’s testimony that she had an ongoing sexual relationship
Mr. Corbridge.
(2) Former University President Judith Albino’s version of a complaint,
related to her secondhand by her executive assistant, that Mr. Corbridge
paid unwanted attention to and touched a secretary named “Melissa” who
worked in President Albino’s office. Ms. Albino also testified to her
secondhand knowledge of other rumored complaints against Mr. Corbridge.
However, Ms. Albino never revealed the names of those women and Ms.
Miller never spoke to the alleged complainants directly.
(3) Ms. Hobson-Panico’s testimony that Mr. Corbridge touched her in an
inappropriate manner on several occasions including grabbing her scarf,
whispering in her ear, kissing her, and putting his arm around her.
(4) Testimony by Ms. Marianne Wesson, a University law professor, that
Mr. Corbridge had a reputation for inappropriate sexual conduct toward
female employees and on one occasion touched her thigh during a social
gathering off campus.
(5) Testimony by Ms. Emily Calhoun and Ms. Kaye Howe, both University
-5- professors, that Mr. Corbridge had a reputation for engaging in
inappropriate sexual conduct toward female employees.
Based on this evidence, Ms. Miller’s Revised Amended Complaint alleged Title
VII quid pro quo and hostile work environment claims against the University and
a 42 U.S.C. § 1983 deprivation of civil rights claim against Mr. Corbridge
individually.
Discovery was highly contentious. Early in the process, the defendants
moved for a protective order due to the “sensitive nature” of Ms. Miller’s
allegations, the potential for harassment and undue embarrassment, and
significant media coverage of the case. 1 After a hearing, the magistrate judge
granted the motion and issued an order limiting the scope and subject matter of
future depositions and restricting distribution of discovery materials. Despite Ms.
Miller’s numerous objections, the district court upheld the protective order and
discovery continued subject to its limitations. Subsequently, Ms. Miller filed a
series of motions to compel in an attempt to obtain testimony from the
University’s former ombudsperson, Ms. Hobson-Panico. The district court denied
1 Early in the discovery process, Ms. Miller took the deposition of former University President Judith Albino. Portions of that deposition were leaked to the press which in turn generated several articles in area newspapers.
-6- Ms. Miller’s motions to the extent they required Ms. Hobson-Panico to answer
questions precluded under the protective order or to reveal information protected
by an “ombudsman privilege.” An “ombudsman privilege,” the district court held,
protects communications made with an expectation of privacy to the University
ombudsperson.
Defendants then filed a motion for summary judgment, which the district
court granted on several grounds. First, the district court concluded the statute of
limitations barred Ms. Miller’s Title VII claims. In the alternative, the district
court found Ms. Miller failed to establish she was a victim of actionable sexual
harassment under Title VII. The court granted summary judgment on Ms.
Miller’s § 1983 claim because it was time barred, or, in the alternative, because
Mr. Corbridge was entitled to qualified immunity. On appeal, Ms. Miller argues
the district erred by: (1) concluding she failed to establish a prima facie case
under Title VII and § 1983; (2) concluding her claims were barred by the statute
of limitations; (3) concluding Mr. Corbridge was entitled to qualified immunity;
(4) upholding a protective order which improperly limited her discovery rights;
(5) limiting discovery pursuant to an ombudsman privilege; and (6) limiting her
ability to conduct investigation of the case. We address each of these issues in
turn.
-7- II. Summary Judgment
A. Title VII Claims
The district court asserted two bases for granting summary judgment on the
Title VII claims. First, the court determined Ms. Miller’s claims were barred by
the statute of limitations, and second, even if they were not, the evidence failed to
establish either hostile work environment or quid pro quo sexual harassment. On
appeal, Ms. Miller argues her claims are not barred by the statute of limitations
under the continuing violation doctrine and, further, that she offered sufficient
evidence to create a genuine fact dispute on both harassment claims.
We review the district court’s grant of summary judgment de novo,
applying the same legal standard as the district court. Penry v. Federal Home
Loan Bank , 155 F.3d 1257, 1261 (10th Cir. 1998), cert. denied , 119 S. Ct. 1334
(1999). We “examine the record to determine if any genuine issue of material
fact was in dispute; if not, we determine if the substantive law was correctly
applied.” Applied Genetics Int’l v. First Affiliated Sec., Inc. , 912 F.2d 1238, 1241
(10th Cir. 1990). In applying this standard, we view the factual record and
inferences therefrom in the light most favorable to the nonmoving party. Tomsic
v. State Farm Mut. Auto. Ins. Co. , 85 F.3d 1472, 1476 (10th Cir. 1996).
However, to survive summary judgment, the nonmoving party may not rest upon
-8- the allegations or denials of his or her pleadings, but must set forth specific facts
showing that there is a genuine issue for trial. Panis v. Mission Hills Bank , 60
F.3d 1486, 1490 (10th Cir. 1995), cert. denied , 516 U.S. 1160 (1996). Summary
judgment is appropriate if a reasonable trier of fact could not return a verdict for
the nonmoving party. Penry , 155 F.3d at 1261.
In Colorado, a Title VII claimant must file a charge of discrimination with
the Equal Employment Opportunity Commission within 300 days after the alleged
unlawful discriminatory practice occurred. 2 42 U.S.C. § 2000e-5(e)(1). This
filing is a prerequisite to a civil suit under Title VII; Martin v. Nannie & the
Newborns , 3 F.3d 1410, 1414 (10th Cir. 1993), and claims based on incidents
occurring outside the 300-day limitations period are generally time-barred.
Mascheroni v. Board of Regents , 28 F.3d 1554, 1561-62 (10th Cir. 1994).
However, under the continuing violation doctrine, a plaintiff may recover for
incidents which occurred outside the statutory time limit if at least one instance of
the alleged discriminatory practice occurred within the limitations period and the
earlier acts are part of a “continuing pattern of discrimination.” Martin , 3 F.3d at
2 The 300-day filing period applies to “deferral states” in which the Equal Employment Opportunity Commission defers to the enforcement efforts of a state agency empowered to undertake employment discrimination investigations. 42 U.S.C. § 2000e- 5(e)(1). Otherwise, the filing period is 180 days. Id.
-9- 1415 (quotation marks and citation omitted). To determine whether alleged
incidents of discrimination constitute a continuing violation we consider three
factors:
(i) subject matter – whether the violations constitute the same type of discrimination; (ii) frequency; and (iii) permanence – whether the nature of the violations should trigger an employee's awareness of the need to assert her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate.
Martin , 3 F.3d at 1415. A plaintiff may not invoke the continuing violation
doctrine by merely alleging that acts occurring outside the statutory time period
had a continuing effect within the statutory period. Id. At the same time, the
discriminatory act occurring within the time period “need not constitute a legally
sufficient Title VII claim in itself.” Mascheroni , 28 F.3d at 1561.
In this case, Ms. Miller filed a Charge of Discrimination with the Equal
Employment Opportunity Commission on April 5, 1995. Subtracting 300 days
from that date results in a limitations period starting June 10, 1994. Because the
vast majority of Ms. Miller’s allegations occurred outside of that limitations
period, i.e. , before June 10, 1994, Ms. Miller attempts to invoke the continuing
violation doctrine. To accomplish this, she must demonstrate that Mr. Corbridge
engaged in a series of related discriminatory acts, at least one of which occurred
on or after June 10, 1994. After a thorough review of the record, the district
-10- court determined Ms. Miller failed to identify a single discriminatory act
occurring after June 10, 1994. The court therefore denied application of the
continuing violation doctrine and concluded that Ms. Miller’s Title VII claims
were time barred. We agree.
As the district court noted, Ms. Miller’s claims rest solely upon the alleged
conduct of Mr. Corbridge. However, none of her allegations specify
discriminatory conduct by Mr. Corbridge on or after June 10, 1994. In fact, the
record indicates Mr. Corbridge resigned from the Chancellor’s office effective
August 1, 1994 and that he was out of the office on vacation for part of June and
all of July 1994. See Purrington v. University of Utah , 996 F.2d 1025, 1029 (10th
Cir. 1993) (“[W]hen the person harassing a plaintiff leaves [his] job, the
harassment ends.” (Internal quotation marks and citation omitted.)). Ms. Miller
argues she “established violations which occurred as late as July or August,
1994.” To support this assertion, Ms. Miller contends Mr. Corbridge “continued
to be responsible” for her work environment until August 1, 1994. However, the
continuing effect of conduct occurring outside the limitations period is
insufficient to invoke the continuing violation doctrine. Martin , 3 F.3d at 1415.
Ms. Miller also claims that during the summer of 1994, Mr. Corbridge
-11- “utilized his power and influence to reward the compliant women ... and punish
Miller” by not recommending her for a position with the incoming Chancellor and
by reassigning some work duties to other employees. Neither of these allegations
is sufficient to invoke the continuing violation doctrine. First, while it does
appear Mr. Corbridge made personnel recommendations to the incoming
Chancellor, we are not persuaded that Mr. Corbridge’s recommendation (or lack
thereof) amounts to a discriminatory act. The Equal Employment Opportunity
Commission defines sexual harassment to include situations in which the
plaintiff’s submission to or rejection of sexual conduct is made a term or
condition of employment or is used as the basis for an employment decision
affecting the individual as well as conduct of a sexual nature that unreasonably
interferes with the plaintiff’s work environment. 29 C.F.R. § 1604.11(a)
(emphasis added). In this case, Mr. Corbridge’s recommendation did not have an
impact on Ms. Miller’s work environment or any direct affect on Ms. Miller’s
employment status. In fact, the new Chancellor, Mr. Roderic Park, retained Ms.
Miller despite Mr. Corbridge’s allegedly unfavorable recommendation. In any
event, it was Mr. Park who made the decisions affecting Ms. Miller’s employment
during his administration and Mr. Park’s conduct is not at issue in this case. 3
3 Ms. Miller originally included Mr. Park as a defendant in this suit but later voluntarily dismissed him. Ms. Miller admits Mr. Park never sexually harassed her.
-12- While we recognize Ms. Miller need not demonstrate the commission of an act
constituting a legally sufficient Title VII claim to invoke the continuing violation
doctrine, she must at least identify a discriminatory act by Mr. Corbridge that
impacted her employment in some manner. 4 See Mascheroni , 28 F.3d at 1562.
Second, we find no factual support for Ms. Miller’s allegations regarding
Mr. Corbridge’s job duty re-assignment in the summer of 1994. Ms. Miller
testified Mr. Corbridge reassigned some of her job duties to Ms. White when Ms.
White returned to the Chancellor’s office after attending law school. Ms. White
4 Even if Mr. Corbridge’s personnel recommendation and reassignment of duties constituted discriminatory acts within the limitations period, those acts are not sufficient to invoke the continuing violation doctrine. See Martin, 3 F.3d at 1415 (listing factors to be considered in assessing continuing violations). The alleged incidents of harassment were relatively infrequent over the six years of Ms. Miller’s employment. More important, the nature of the alleged violations should have triggered Ms. Miller’s awareness of the need to assert her rights. Ms. Miller testified that she believed the harassment began shortly after she started work in the Chancellor’s office and that the early incidents influenced her perceptions of Mr. Corbridge and led her to believe that his later conduct was also motivated by discriminatory bias. In addition, the vast majority of her allegations center on events occurring between 1988 and 1993. Yet Ms. Miller waited until 1995 to file a complaint. Because Ms. Miller knew of the alleged discrimination as early as 1988, she had a duty to assert her rights at that time, and she may not now rely on the continuing violation doctrine to overcome the statutory filing requirements. Martin, 3 F.3d at 1415 n.6 (“[I]f an event or series of events should have alerted a reasonable person to act to assert his or her rights at the time of the violation, the victim cannot later rely on the continuing violation doctrine to overcome the statutory requirement of filing a charge with the [Equal Employment Opportunity Commission] with respect to that event or series of events.”).
-13- returned to the Chancellor’s office on a full time basis in 1993 – well before June
10, 1994. Ms. Miller also claims her job duties changed during the transition
period between Mr. Corbridge and Mr. Park. However, the record shows Mr.
Park was responsible for the personnel decisions affecting his term of office, and
we find no evidence that Mr. Corbridge reassigned any duties in the summer of
1994.
In sum, we conclude Ms. Miller has failed to allege at least one
discriminatory act occurring within the 300-day limitation period and, as such,
she cannot invoke the continuing violation doctrine to preserve her claims. Thus,
the district court appropriately determined that Ms. Miller’s Title VII claims are
time-barred. 5 See Mascheroni , 28 F.3d at 1562 (concluding the statute of
limitations barred plaintiff’s Title VII claims because he failed to allege at least
one discriminatory act occurring within the limitation period).
Ms. Miller also contends the district court erred in granting the University’s
motion for summary judgment based on her failure to present sufficient evidence
of a hostile work environment or quid pro quo sexual harassment. Ms. Miller
We agree with the district court’s conclusion that Ms. Miller has not presented 5
circumstances under which she is entitled to equitable tolling of the limitations period.
-14- argues she presented enough evidence to create a genuine issue of material fact on
both claims. We disagree. 6
To survive summary judgment on her quid pro quo claim, Ms. Miller must
show that a reasonable jury could find Mr. Corbridge conditioned concrete
employment benefits on her submission to sexual conduct. Martin , 3 F.3d at
1416. “The gravamen of a quid pro quo sexual harassment claim is that tangible
job benefits are conditioned on an employee’s submission to conduct of a sexual
nature and that adverse job consequences result from the employee’s refusal to
submit to the conduct.” Hicks v. Gates Rubber Co., 833 F.2d 1406, 1414 (10th
Cir. 1987). Ms. Miller admits Mr. Corbridge never made overt requests for
sexual favors. Instead, Ms. Miller contends Mr. Corbridge “punished” her for
rebuffing his sexual advances by taking tangible job benefits from her while at the
same time rewarding more “compliant” women with job benefits. The tangible
job benefits Mr. Corbridge allegedly took from Ms. Miller include: (1) job
duties, (2) an employment recommendation to the new Chancellor, and (3)
ultimately her job because Mr. Corbridge’s conduct caused a mental break down
6 Although the statute of limitations bar is a sufficient basis upon which to affirm the district court’s ruling, we nevertheless address the court’s alternative analysis because it is crucial to other issues in this case.
-15- which in turn forced her to quit. 7 None of these allegations is sufficient to create
a genuine issue of material fact regarding specific adverse job consequences Ms.
Miller suffered.
First, although the record is somewhat unclear, it appears Ms. Miller’s job
duties were altered on two occasions. In 1993, Ms. Miller claims Mr. Corbridge
assigned some of her duties to Ms. White when Ms. White returned to the
Chancellor’s office after attending law school. However, as Ms. Miller admits,
Ms. White performed those duties before she went to law school, and Mr.
Corbridge merely restored them to Ms. White when she returned. Ms. Miller
cannot lose tangible job benefits that were never hers to begin with. 8
Ms. Miller makes much of the fact that Mr. Corbridge and Ms. White were
allegedly having an affair at the time. However, their consensual romantic
7 In her brief, Ms. Miller implies that Mr. Corbridge yelled at and humiliated her because she refused his sexual overtures. We agree with the district court that such conduct does not amount to the denial of a “concrete employment benefit” and cannot form the basis of a quid pro quo claim. Martin, 3 F.3d at 1416.
8 Ms. Miller admits her allegations regarding the loss of tangible job benefits prior to August 1994 are “very weak” since prior to that date “what Jennifer Miller had lost in terms of a concrete benefit was admittedly marginal.”
-16- involvement, if any, is of no consequence. 9 Title VII does not prohibit favoritism
shown to a supervisor’s paramour because such preferential treatment is based on
voluntary romantic affiliation and not gender differences. See Taken v. Oklahoma
Corp. Comm’n , 125 F.3d 1366, 1370 (10th Cir. 1997) (concluding plaintiff’s
allegations that defendant supervisor preselected his paramour for a promotion
did not state an actionable Title VII claim because allegations were based on
voluntary romantic affiliation and not gender differences). Thus, even assuming
Mr. Corbridge and Ms. White were romantically involved and that Mr. Corbridge
favored Ms. White in some manner, such favoritism would not present an
actionable quid pro quo claim.
The second reassignment of duties allegedly occurred during the transition
from Chancellor Corbridge to interim Chancellor Roderic Park. However, the
record shows Mr. Corbridge merely made recommendations to the incoming
Chancellor and that Mr. Park was responsible for the personnel decisions
affecting his term of office.Ms. Miller admits Mr. Park did not discriminate
against her and, therefore, she cannot base her quid pro quo claim on his
decisions.
9 Both Ms. White and Mr. Corbridge deny any such involvement.
-17- We also conclude Mr. Corbridge’s employment recommendation to Mr.
Park and Ms. Miller’s resignation from the University are not denials of “concrete
employment benefits.” Mr. Corbridge’s recommendation to Mr. Park was just
that – a recommendation. Mr. Park was free to act on that recommendation or
not. Regardless, the recommendation itself had no direct, tangible impact on Ms.
Miller’s job. Cf. Sanders v. Casa View Baptist Church , 134 F.3d 331, 338 (5th
Cir.) (affirming summary judgment against plaintiffs on their quid pro quo claim
where evidence revealed that defendant’s alleged conduct had no tangible affect
on plaintiffs’ jobs), cert. denied , 119 S. Ct. 161 (1998). Rather, it is Mr. Park’s
actions that impacted Ms. Miller’s job duties and, as we stated above, Mr. Park’s
actions cannot serve as a basis for Ms. Miller’s quid pro quo claim. Likewise,
Ms. Miller cannot transform her decision to resign into the loss of a concrete
employment benefit by alleging Mr. Corbridge caused her to quit. Mr. Corbridge
no longer worked in the Chancellor’s office when Ms Miller resigned and it was
therefore impossible for him to condition her continued employment on
submission to sexual conduct. Thus, Ms. Miller has failed to present sufficient
evidence that she suffered a tangible, adverse job consequence as a result of her
failure to submit to unwelcome sexual advances. For these reasons, the district
court did not err in granting summary judgment on her quid pro quo claim.
-18- We next consider Ms. Miller’s hostile work environment claim. A hostile
work environment occurs when unwelcome sexual conduct unreasonably
interferes with an employee’s performance or creates an intimidating, hostile, or
offensive work environment. Smith v. Northwest Fin. Acceptance, Inc ., 129 F.3d
1408, 1412 (10th Cir. 1997) (quoting Meritor Sav. Bank, FSB v. Vinson , 477 U.S.
57, 65 (1986)). To survive summary judgment, Ms. Miller must show that a
rational jury could find the harassment so severe or pervasive as to alter the
conditions of the her employment and create an abusive working environment.
Smith , 129 F.3d at 1412. The conduct must be both objectively and subjectively
abusive. Lockard v. Pizza Hut, Inc. , 162 F.3d 1062, 1071 (10th Cir. 1998). Ms.
Miller must also produce evidence that “the conduct at issue was not merely
tinged with offensive sexual connotations but actually constituted discrimination
because of sex.” Oncale v. Sundowner Offshore Serv., Inc. , 523 U.S. 75, __, 118
S. Ct. 998, 1002 (1998) (internal quotation marks omitted). To determine whether
an environment is hostile or abusive, we examine the totality of the circumstances
including factors such as “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.” Harris v. Forklift Sys., Inc ., 510 U.S. 17, 23 (1993). Conduct
which merely engenders offensive feelings or amounts to normal job stress does
-19- not violate Title VII. See Smith , 129 F.3d at 1412; Trujillo v. University of Colo.
Health Sciences Ctr. , 157 F.3d 1211, 1214 (10th Cir. 1998).
Ms. Miller fails to make the required showing. As the district court noted,
many of Ms. Miller’s allegations center on incidents she was not aware of during
her employment. However, to establish a genuine issue of material fact as to
whether she was subject to a hostile work environment, Ms. Miller may rely only
on conduct she was aware of during her employment. 10 Hirase-Doi v. U.S. West
Communications, Inc. , 61 F.3d 777, 782 (10th Cir. 1995). Considering only that
evidence, we are unable to conclude that a rational jury could find the alleged
harassment severe or pervasive enough to constitute an objectively hostile work
environment. As Ms. Miller admits, her allegations contain none of the
“hallmarks” of a sexually hostile work environment claim such as overt requests
for sexual favors, lewd remarks or sexual comments about her body or clothing,
jokes of a sexual nature, or display of sexually oriented materials. Trujillo , 157
10 Because the severity-pervasiveness standard is an inquiry aimed at establishing whether the plaintiff experienced an abusive environment, we consider only that conduct the plaintiff was aware of during the time at issue. See Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 782 (10th Cir. 1995). This is true whether we are evaluating the evidence from the plaintiff’s subjective viewpoint or a reasonable person’s objective viewpoint. Either way the focus remains on the conduct experienced by the plaintiff. See, e.g., Smith, 129 F.3d at 1413-14 (examining plaintiff’s work environment from a subjective and objective point of view).
-20- F.3d at 1214 (concluding plaintiff failed to establish a racially hostile work
environment where there was no evidence of physically threatening or humiliating
activity, racial slurs, or ridicule). The unwelcome touching and leering directed
at Ms. Miller was relatively infrequent and completely ceased by the fall of 1993.
See Penry , 155 F.3d at 1263 (concluding gender-based incidents occurring
sporadically over a three year period were insufficient to establish a hostile work
environment). Moreover, the touching was relatively mild in character – it did
not involve intimate body parts, nor was it physically threatening. See, e.g.,
Adusumilli v. City of Chicago , 164 F.3d 353, 361 (7th Cir. 1998) (concluding
incidents during which a co-worker allegedly touched plaintiff’s arm, fingers, and
buttocks were too mild and infrequent to establish a hostile work environment).
In fact, many of Ms. Miller’s co-workers testified that while Mr. Corbridge had a
“friendly” style and frequently touched male and female employees during
conversations, his touching was neither sexual nor offensive. Mr. Corbridge’s
alleged touching of other women, including Ms. Branigan and Ms. Hobson-
Panico, is likewise too infrequent and mild in character to establish a hostile work
environment.
Ms. Miller’s other allegations also lack the severity or pervasiveness
necessary to establish a work environment “permeated with discriminatory
-21- intimidation, ridicule and insult.” Smith , 129 F.3d at 1414 (internal quotation
marks and citation omitted). Mr. Corbridge’s invitations to attend University
social gatherings and after work drinks were infrequent and confined to the first
few months of Ms. Miller’s six-year tenure in the Chancellor’s office. The fact
that Mr. Corbridge directed Ms. Miller to arrange phone calls and meetings is also
not indicative of a hostile work environment. It was Ms. Miller’s job to place
phone calls and arrange meetings for the Chancellor, and we fail to see how
directing an employee to perform regular job duties amounts to harassment. Ms.
Miller claims she was forced to “enable [Mr. Corbridge] in his romantic
endeavors,” and testified “[i]t was offensive that I would have to arrange his
social life .... That wasn’t in my job description. That wasn’t something I felt
that I should have to do.” Yet, Ms. Miller admits she never witnessed any of the
calls or meetings, and we find no evidence that she was in any way subject to
their content, romantic or otherwise. Her unsupported speculation about what did
occur does not transform the Chancellor’s request that she perform her regular job
duties into evidence of a hostile or abusive work environment.
Viewing the totality of the circumstances, including the general work
atmosphere and the specific conduct directed at Ms. Miller and others, we find
insufficient evidence of either severe or pervasive harassment. As the district
-22- court noted, Ms. Miller’s evidence shows nothing more than her subjective
opinion that Mr. Corbridge’s behavior was inappropriate for a boss. Such
opinions are not actionable under Title VII. The district court correctly granted
summary judgment on the hostile work environment claim.
B. § 1983 Claim.
In granting Mr. Corbridge’s motion for summary judgment on Ms. Miller’s
§ 1983 claim, the district court again asserted two bases for its decision. The
court concluded Mr. Corbridge was entitled to qualified immunity or, in the
alternative, that the claim was barred by the relevant statute of limitations. After
reviewing the district court’s grant of summary judgment de novo and applying
the same legal standard as the district court, Penry , 155 F.3d at 1261, we
conclude the district court properly determined that Mr. Corbridge is entitled to
qualified immunity.
Qualified immunity shields government officials performing discretionary
functions from liability for civil damages “insofar as their conduct does not
violate clearly established statutory or constitutionality rights of which a
reasonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818
(1982). Before reaching the qualified immunity issue, however, we must first
-23- determine whether Ms. Miller’s allegations, if accepted as true, state a claim for
violation of any rights secured under the Constitution. Abeyta v. Chama Valley
Indep. Schl. Dist. , 77 F.3d 1253, 1255 (10th Cir. 1996). We will not reach the
qualified immunity issue if Ms. Miller’s claims are not actionable. Abeyta , 77
F.3d at 1255. Ms. Miller has the burden to “show with particularity facts and law
establishing the inference that defendant violated a constitutional right.” Id.
(quotation marks and citation omitted). “More is required to state a claim for a
constitutional violation ... than for a statutory claim under Title VII.” Id. at 1256.
Ms. Miller claims Mr. Corbridge violated the Equal Protection Clause by
committing both quid pro quo and hostile work environment sexual harassment.
However, as discussed above, Ms. Miller’s evidence does not sufficiently
demonstrate that Mr. Corbridge committed actionable harassment under Title VII.
Because she cannot demonstrate that Mr. Corbridge’s conduct violated Title VII,
her constitutional claim based on the same conduct fails as well. See id . Thus,
the district court did not err in granting summary judgment on Ms. Miller’s §1983
claims.
III. Discovery Limitations
In relevant part, the protective order limited discovery by: (1) prohibiting
-24- deposition questions based on rumor and innuendo; (2) requiring deponents to
identify where or from whom they obtained the information testified to, when
they obtained the information, and the nature of the information; (3) limiting
discovery concerning Mr. Corbridge’s alleged improprieties to employees of the
Chancellor’s office and employees over whom Mr. Corbridge had direct
supervision; and (4) limiting discovery to the time frame of Ms. Miller’s
employment in the Chancellor’s office. The district court also made discovery
rulings that prohibited Ms. Miller from questioning witnesses about Mr.
Corbridge’s inappropriate conduct if the conduct occurred outside the office, and
if Ms. Miller was unaware of it during her employment. The court offered two
primary bases for imposing these discovery limitations: (1) the excluded
information was not relevant to Ms. Miller’s claims, and (2) the limitations served
to protect both parties and non-parties from annoyance, embarrassment,
intimidation and oppression. Ms. Miller argues the court improperly limited her
ability to discover relevant information about Mr. Corbridge’s alleged improper
sexual conduct. She contends such information is relevant to establish the
“nuances” of her hostile work environment, to prove motive and discriminatory
intent, as well as the University’s vicarious liability for Mr. Corbridge’s actions.
In addition, Ms. Miller claims the district court mischaracterized relevant
evidence about Mr. Corbridge’s conduct as rumor and innuendo.
-25- We review the district court’s discovery order for abuse of discretion.
Gomez v. Martin Marietta Corp. , 50 F.3d 1511, 1520 (10th Cir. 1995). We will
not disturb the trial court’s ruling “absent a definite and firm conviction that the
lower court made a clear error of judgment or exceeded the bounds of permissible
choice in the circumstances.” Kidd v. Taos Ski Valley, Inc. , 88 F.3d 848, 853
(10th Cir. 1996) (internal quotation marks and citation omitted). A court abuses
its discretion if its ruling is arbitrary, capricious, whimsical, or manifestly
unreasonable. Coletti v. Cudd Pressure Control , 165 F.3d 767, 777 (10th Cir.
1999). An erroneous discovery ruling will not lead to reversal unless the error
affected the substantial rights of the parties. Frontier Ref., Inc. v. Gorman-Rupp
Co., Inc. , 136 F.3d 695, 705 (10th Cir. 1998).
We agree with the district court that it has wide discretion to limit the
scope of discovery based on the rights and needs of the parties. See Gomez, 50
F.3d at 1520. Specifically, the federal rules give district courts the power to limit
discovery if “the burden or expense of the proposed discovery outweighs its likely
benefit.” Fed. R. Civ. P. 26 (b)(2)(iii). District courts may also issue a protective
order if “justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c).
The district court is in the best position to weigh these variables and determine
-26- the appropriate limits because, unlike an appellate court, the district court has the
ability to view firsthand the progression of the case, the litigants, and the impact
of discovery on parties and nonparties. Cf. Moothart v. Bell , 21 F.3d 1499, 1504
(10th Cir. 1994) (concluding that the abuse of discretion standard is appropriate
in reviewing a trial court’s evidentiary rulings because the trial court has the
firsthand ability to view the witness or evidence and assess credibility and
probative value).
In this case, the district court weighed the significant burdens Ms. Miller’s
proposed discovery would place on both parties and non-parties against the
potential relevance of the information sought, concluded the burdens outweighed
the benefits, and imposed limitations accordingly. We agree that much of the
information excluded, including reports of conduct based on rumors and
innuendo, and other women’s experiences that were remote in time and attenuated
from Ms. Miller’s experiences, has limited relevance to Ms. Miller’s claims. See
Hirase-Doi , 61 F.3d at 782 (concluding plaintiff may only rely on evidence of
conduct she was aware of to prove the existence of a hostile work environment).
We also agree that inquiries into such conduct could and did unduly harass,
intimidate and disparage parties and non-parties to this case. Furthermore, we
note the district court allowed Ms. Miller significant discovery regarding people
-27- and events that did directly affect her employment and work environment. 11 See
Gomez , 50 F.3d at 1520 (concluding the district court did not abuse its discretion
in limiting discovery in Title VII case were plaintiff was provided abundant
discovery).
However, we must address some concerns we have with the district court’s
analysis regarding relevancy. Under the federal rules, a party may obtain
discovery of “any matter, not privileged, which is relevant to the subject matter
11 We find no merit in Ms. Miller’s argument that the district court erroneously prohibited her from interviewing witnesses on Ms. Albino’s “list.” The list contains names of women that Ms. Albino claims might have suffered sexual harassment on the Boulder campus. The only names the district court refused to reveal where those of women whose alleged complaints Ms. Albino heard of through the campus “rumor mill.” We find no abuse of discretion in that decision. The remaining names Ms. Miller already knew, Ms. Albino could not identify, or the court allowed to be revealed. Ms. Miller was free to interview those remaining women. The district court merely cautioned her to make sure the testimony would be useful before interviewing them.
Ms. Miller also claims the court erroneously prevented her from having ex parte communications with former Chancellors of the University. However, Ms. Miller failed to cite to or include a transcript of the district court’s oral ruling. We therefore decline to review the issue. See McGinnis v. Gustafson, 978 F.2d 1199, 1201 (10th Cir. 1992) (refusing to review issue because appellant’s failure to include transcript of the district court’s oral ruling “raises an effective barrier to informed, substantive appellate review.”); Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc., 82 F.3d 1533, 1540 n.3 (10th Cir.), cert. denied, 519 U.S. 928 (1996) (“We may refuse to review alleged error if the party seeking review fails to include and reference the portion of the record wherein their objection and the district court's ruling thereon may be found.” (Internal quotation marks and citation omitted.)).
-28- involved in the pending action.” Fed. R. Civ. P. 26(b)(1). Of course, information
need not be admissible to be considered relevant for discovery purposes. Rather
the information sought must “appear[] reasonably calculated to lead to the
discovery of admissible evidence.” Id. In its analysis, the court seems to imply
that all evidence regarding Mr. Corbridge’s conduct toward other women which
Ms. Miller was unaware of during her employment was irrelevant to Ms. Miller’s
Title VII claims. While we agree the evidence has limited value to Ms. Miller in
this case, such evidence is not totally irrelevant to a harassment claim under Title
VII.
For example, in a hostile work environment claim, a plaintiff must show (1)
that the harassment was severe or pervasive enough to alter the terms, conditions
or privilege of employment and (2) that the harassment stemmed from
discriminatory animus. Trujillo , 157 F.3d at 1214. We have previously held that
a plaintiff may not rely on evidence of conduct he or she was unaware of to
establish element number one – the severity and pervasiveness of the harassment.
See Hirase-Doi , 61 F.3d at 782; Creamer v. Laidlaw Transit, Inc. , 86 F.3d 167,
171 (10th Cir.), cert. denied , 519 U.S. 983 (1996). However that evidence may
be relevant to establishing element number two – discriminatory intent. See
Spulak v. K Mart Corp. , 894 F.2d 1150, 1156 (10th Cir. 1990) (holding that
-29- testimony of other employees about their treatment by the defendant is relevant to
the issue of discriminatory intent). The relevance of such testimony is not
affected by the plaintiff’s knowledge of conduct because it is offered to show the
defendant’s state of mind rather than the plaintiff’s experiences in the workplace.
See Hurley v. Atlantic City Police Dep’t , 174 F.3d 95, 110-11 (3d Cir. 1999)
(concluding evidence of defendant supervisor’s harassment of other women was
relevant to show motive in plaintiff’s hostile work environment claim even
though plaintiff had no personal knowledge of the events). Of course, the court
may exclude such testimony if the witness’ statements have no logical or
reasonable connection to the plaintiff’s circumstances. See Curtis v. Oklahoma
City Pub. Schl. Bd. of Educ. , 147 F.3d 1200, 1217 (10th Cir. 1998).
Conduct the plaintiff was unaware of might also be relevant to prove an
employer’s liability for sexual harassment by one of its employees. There are
three bases for holding an employer liable under Title VII: (1) if the employee’s
conduct occurred within the scope of his employment, (2) if the employer knew or
should have known about the employee’s conduct and failed to respond in a
reasonable manner, and (3) if the employee acted with apparent authority. See
Wright-Simmons v. City of Okla. City , 155 F.3d 1264, 1269-70 (10th Cir. 1998).
Evidence of a supervisor’s harassment of other women may be relevant to
-30- establish employer liability under the second basis, even if the plaintiff was
unaware of it, so long as the harassment was similar in nature and close in time to
plaintiff’s experiences. Hirase-Doi, 61 F.3d at 783-84; see also Hurley , 174 F.3d
at 111 (concluding evidence of other acts of harassment and widespread sexism is
probative of whether defendant employer knew or should have known that sexual
harassment was occurring, regardless of whether plaintiff employee had
knowledge of the incidents). In addition, a supervisor’s conduct may be relevant
under the third basis, to rebut the employer’s affirmative defense that it exercised
reasonable care to prevent and correct the supervisor’s behavior. See Faragher v.
City of Boca Raton , 118 S. Ct. 2275, 2292-93 (1998) (discussing the apparent
authority basis for employer liability and the affirmative defense available to
employers if no tangible employment action is taken).
Thus, evidence of the defendant’s conduct which the plaintiff was unaware
of at the time is not a priori irrelevant to a hostile work environment claim.
Nonetheless, we find the district court’s failure to consider the potential relevance
of such evidence in this case to be harmless error. None of the information the
district court excluded would have saved Ms. Miller’s claims from summary
judgment. As we discussed above, the court properly determined that Ms. Miller
failed to sufficiently demonstrate harassment severe or pervasive enough to
-31- constitute a hostile work environment. The only evidence Ms. Miller could have
used to make this showing was conduct she was aware of during her employment.
See Hirase-Doi , 61 F.3d at 782. Information about Mr. Corbridge’s conduct
outside Ms. Miller’s work environment and conduct she was unaware of at the
time would not have created a genuine fact issue regarding the severity and
pervasiveness of the alleged harassment. 12 The same is true for her quid pro quo
claim. The district court granted summary judgment on that claim because Ms.
Miller failed to identify a tangible job benefit. None of the excluded information
pertains to Ms. Miller’s employment or the specific job benefits she allegedly
lost. Thus, we cannot say that the district court’s ruling, even if erroneous,
affected the substantial rights of the parties or precluded a fair trial. As such, we
find no abuse of discretion warranting reversal. See Frontier Refin. , 136 F.3d at
705 (concluding that an erroneous discovery ruling requires reversal only if it
affected the substantial rights of the parties); Gaines v. Ski Apache , 8 F.3d 726,
730 (10th Cir 1993) (“The trial court has broad discretion regarding its control of
12 We recognize that Ms. Miller could have used that evidence to prove Mr. Corbridge’s discriminatory intent. However, proof of motive or lack thereof was not a key issue in the district court’s decision. Moreover, evidence of motive would not change the ultimate outcome in this case because, even if we assume that all of the conduct Ms. Miller witnessed was in fact motivated by discriminatory intent, we are still unable to conclude that a rational jury could find that conduct sufficiently severe or pervasive. Cf. Penry, 155 F.3d at 1263 (concluding plaintiff’s evidence, including both gender- motivated conduct and conduct that merely had gender-related implications, was insufficient to defeat summary judgment of her hostile work environment claim).
-32- discovery, and we will find that discretion to have been abused only when a
denial of discovery precludes a fair trial.” (Internal quotation marks and citation
omitted.); Miller v. United States , 710 F.2d 656, 666 (10th Cir.) (concluding trial
court made no prejudicial error in limiting discovery where there were no facts
plaintiffs could have developed to avoid dismissal of their claim), cert. denied ,
464 U.S. 939 (1983).
For the same reason, we affirm the district court’s ruling regarding the
ombudsman privilege. It is clear that neither Colorado law nor federal law,
including the decisions of this circuit, recognize an ombudsman privilege. Other
federal courts have gone both ways on the issue. Compare Carman v. McDonnell
Douglas Corp., 114 F.3d 790, 793-94 (8th Cir. 1997) (concluding complaints
registered with a corporate ombudsman office were not privileged) with Shabazz
v. Scurr , 662 F. Supp. 90, 92 (S.D. Iowa 1987) (concluding communications
received by prison ombudsman were privileged). We find it unnecessary to
address the issue here because the district court’s ruling does not affect the
substantial rights of the parties. The information precluded under the privilege
concerns other employees’ work experiences and other employee’s complaints of
discriminatory conduct. It does not relate to the work environment Ms. Miller
experienced nor the tangible job benefits she lost and, therefore, could not have
-33- saved her Title VII or § 1983 claims from summary judgment.
Accordingly, we AFFIRM the district court’s discovery rulings and order
granting summary judgment in favor of the University and Mr. Corbridge.
Entered by the Court:
WADE BRORBY United States Circuit Judge
-34-