Purrington v. University of Utah

996 F.2d 1025, 1993 WL 214887
Court of Appeals for the Tenth Circuit·Decided June 21, 1993·No. No. 91-4219·Published·Cited by 51 cases

Opinion

BARRETT, Senior Circuit Judge.

In September, 1985, Beverly T. Purrington (Purrington) was hired by the University of Utah as the Program Coordinator at the Women’s Resource Center (WRC), at which time Shauna Adix (Adix) served as the WRC Director. In March, 1986, Purrington contends that Adix began sexually harassing her. The harassment consisted of Adix frequently touching Purrington; pressing her body, namely her breasts, against Purring-ton; trapping Purrington in corners and against walls and obstructing passageways so that Purrington could not get by; standing close to and putting her arm around Purring-ton; and making sexually suggestive gestures and lewd and inappropriate sexual comments to Purrington and other women. (R., Appellant’s Appendix, Vol. 1 at 371-73, 543-48).

Purrington objected, both orally and in writing, to Adix about this conduct. (R., Appellant’s Appendix, Vol. 2 at 548, 562, 694, 918-20). Purrington also discussed the problem with others, including Kaye Coleman, Director of the University Office of Equal Opportunity (OEO); Norman Gibbons, Dean of Student Affairs and Services; Afesa Adams, Adix’ immediate supervisor and University Associate Vice President; and James Clayton, University Provost. (R., Appellant’s Appendix, Vol. 1 at 371-73; Vol. 2 at 536-39, 554-58, 628-30, 873, 918).

Adix left the WRC on May 31, 1988, to begin work at the School of Social Work. Purrington had no direct physical or interpersonal contact with Adix after that date. Following Adix’ departure from WRC, Pur-rington cites two incidents as constituting part of a continuing sexual harassment in violation of Title VII. At the School of Social Work in the spring' of 1989, Purrington witnessed Adix place her arm around a woman in a manner which Purrington found inappropriate. Second, Purrington was informed by a former WRC staff member that in the summer of 1989, Adix hugged the former staff member who was annoyed by such contact. Purrington did not witness this occurrence.

Purrington filed this action alleging sexual harassment through a hostile work environment and retaliation, both in violation of Title VII, Civil Rights Act of 1964, as amended, 42 [1028]*1028U.S.C. § 2000e, et seq. The district court granted summary judgment to all defendants on Purrington’s hostile work environment claim, as the claim was untimely. The retaliation claim was tried to the court which ruled that Purrington failed to prove retaliation by any defendant.

On appeal, Purrington contends that the district court erred in: (1) granting summary judgment dismissing as untimely Purring-ton’s hostile work environment claim, (2) refusing to shift the burden of proof to defendants on the retaliation claim, in accord with Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), (3) requiring that Purrington prove intent rather than causation on her retaliation claim, and (4) excluding testimony proffered by Pur-rington.

I. Timeliness of Hostile Work Environment Claim

The district court granted summary judgment dismissing Purrington’s hostile work environment claim as untimely. This court reviews a grant of summary judgment de novo. “We apply the same legal standard used by the district court under Fed.R.Civ.P. 56(c) and 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, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).

In Utah, a plaintiff must file a Title VII discrimination charge within 240 days of the alleged discriminatory act.1 Purrington filed her charge on July 28, 1989. Thus, her claim is timely only with respect to discriminatory acts which occurred after November 30, 1988. The district court held that because Adix neither touched nor made comments to Purrington once Adix left the WRC on May 31, 1988, no hostile work environment existed after that date. Therefore, for Purrington’s untimely claim of sexual harassment to survive, she must either prove that a continuing violation existed or establish equitable tolling.

A. Continuing Violation

“[A] hostile environment claim usually involves a continuing violation.” Waltman v. International Paper Co., 875 F.2d 468, 476 (5th Cir.1989). To invoke the continuing violation exception to the Title VII charge-filing deadlines, Purrington must show either (1) a series of related acts taken against a single individual, one or more of which falls within the limitations period, or (2) the maintenance of a company-wide policy of discrimination both before and during the limitations period. Bruno v. Western Elec. Co., 829 F.2d 957, 961 (10th Cir.1987).

(1) Series of Related Acts

To prove a series of related acts, Purring-ton must show that the acts rise to the level of a “dogged pattern” of discrimination as distinguished from “isolated and sporadic outbreaks.” Id. The evidence must “support ] a determination that the ‘alleged discriminatory acts are related closely enough to constitute a continuing violation.’ ” Id. (citing Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir.1983)). “Courts have not formulated a clear standard for determining when alleged discriminatory acts are related closely enough to constitute a continuing violation and when they are merely discrete, isolated, and completed acts which must be regarded as individual violations.” Berry, 715 F.2d at 981. The Berry court found three inquiries relevant, though not exhaustive: (1) whether the alleged acts involve the same type of violation, (2) whether the acts are recurring versus isolated; and perhaps most important, (3) whether the acts have the degree of permanence which should alert the employee to the duty to assert her rights. Id. Permanency depends on what the plaintiff knew or should have known at the time of the violation. In noting that acts of harassment which create a hostile environment generally have a lesser degree of permanence, the Fifth Circuit provided as an example that, “[i]f the person harassing a [1029]*1029plaintiff leaves his job, the harassment ends.... ” Wattman, 875 F.2d at 476.

While Purrington asserted that she saw Adix engaged in inappropriate behavior on several occasions following Adix’ departure from the WRC, only two incidents were identified with sufficient specificity and thereby referenced by the district court:

In the spring of -1989, while at the School of Social Work Building on WRC business, plaintiff witnessed Adix place her arm around a woman in a manner similar to the way "'Adix touched women at the WRC.
In the summer of 1989, while serving as a facilitator during a workshop at the Graduate School of Social Work, Adix hugged a former WRC staff member in a way-the former staff member believed was sexual in nature. Plaintiff did not witness this event; rather, she was told about it by the former staff member.

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Purrington v. University of Utah, 996 F.2d 1025, 1993 WL 214887 (10th Cir. 1993).

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