PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
MARY ANN ROCHA VIGIL,
Plaintiff-Appellant,
v. No. 96-2059
CITY OF LAS CRUCES,
Defendant-Appellee.
ORDER Filed July 24, 1997
Before ANDERSON, TACHA, and BALDOCK, Circuit Judges.
The petition for rehearing is denied by the panel of judges who decided the case
on the ground that the petition was not timely filed. A member of the active court sua
sponte called for a poll of the court to determine whether the court would rehear the
case en banc. Judges Seymour, Ebel, and Lucero voted to grant rehearing en banc. All
other active members of the court voted to deny rehearing en banc. The petition for
rehearing is therefore denied.
Entered for the Court PATRICK FISHER, Clerk of Court
by: Deputy Clerk No . 96-2059, Vigil v. City of Las Cruces
PORFILIO, Circuit Judge
Because I find no precedence for the publication of an order denying
rehearing and rehearing en banc, I have no idea what to label this missive.
Nonetheless, an issue has been made over the denial of rehearing en banc, and I
am stirred to state for the record the reason why I have voted to deny. I hope in
so doing I do not create a custom for this court, because there already being
enough judicial verbiage in print to confound practioners, I find opprobrious this
whole notion of publishing non-precedential matters.
Lest there be a misapprehension, my vote has absolutely nothing to do with
the merits of the case. Guided by what I believe are the controlling principles of
Fed. R. App. P. 35(a), I simply do not believe the appeal over which this
controversy has arisen is appropriate for en banc consideration.
I take to heart those portions of Rule 35(a) which say rehearing en banc is
“not favored” and will not be ordered unless the case involves a “question of
exceptional importance.” Recalling that the disposition of this matter was by an
unpublished order and judgment, indicating a panel determination the case has no
value as precedent, 10th Cir. R. 36.1, and rendering the decision virtually
uncitable, 10th Cir. R. 36.3, I believe the panel decision presents no question of
exceptional importance. What the panel determined makes no impact upon the jurisprudence of this circuit; therefore, it has no value except to the parties
themselves. Accordingly, in my opinion the proceeding does not reach the high
standard for en banc rehearing required by Rule 35(a). I have never voted to
grant rehearing en banc in such a case, and I find nothing about this one to change
my practice.
-2- PUBLISH
96-2059, Rocha Vigil v. City of Las Cruces
LUCERO, Circuit Judge, Dissenting
In an unpublished order, a panel of this court recently decided that a pro se
plaintiff’s allegations of racial and sexual harassment are insufficient to resist
summary judgment under Title VII. Vigil v. City of Las Cruces, No. 96-2059,
1997 WL 265095 (10th Cir. May 20, 1997). Mary Ann Vigil claims that when
working as a department clerk typist at the Las Cruces International Airport, her
supervisor “frequently” referred to Hispanics as “wetbacks,” and, in response to
complaints that Hispanic customers were overcharged, stated, “I didn’t know that
Mexicans had rights.” She further claims that this same supervisor offered her
pornographic software, left pornographic photographs in her desk, and
“constantly” requested that she accompany him flying despite her repeated
statements that she was not interested in doing so. Assuming the truth of these
contentions, Ms. Vigil has presented an adequate case of a racially and sexually
hostile work environment, as defined by the Supreme Court in Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986), and Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993).
In ruling against Ms. Vigil’s racial harassment claim, the panel relies on
Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987), which states: It is well established that a working environment dominated by racial slurs constitutes a violation of Title VII. To establish a racially hostile work environment, however, plaintiffs must prove more than a few isolated incidents of racial enmity. Casual comments, or accidental or sporadic conversation, will not trigger equitable relief pursuant to the statute. Instead, there must be a steady barrage of opprobrious racial comment. Title VII is violated only where the work environment is so heavily polluted with discrimination as to destroy the emotional and psychological stability of the minority employee.
Id. at 1412-13 (internal quotations and citations omitted). In light of Meritor and
Harris, the panel errs in relying on Hicks. I have therefore requested the court to
reconsider en banc the current status of Hicks in Title VII hostile work
environment cases and the application of a corrected standard to Ms. Vigil’s
racial and sexual harassment claims. 1 From the court’s decision not to rehear the
case en banc, I respectfully dissent.
In Meritor, the Supreme Court held that Title VII is violated where
harassment is “sufficiently severe or pervasive to alter the conditions of [the
victim’s] employment and create an abusive working environment.” 477 U.S. at
67 (quotation omitted) (alteration in original). Subsequently, the Court stressed
1 The panel does not formally rely on Hicks in affirming summary judgment against Ms. Vigil on her sexual harassment claim. However, the panel does rely on Lowe v. Angelo’s Italian Foods, Inc., 87 F.3d 1170, 1175 (10th Cir.1996), for the proposition that “[c]asual or isolated manifestations of discriminatory conduct, such as a few sexual comments or slurs, may not support a cause of action.” This erroneous conclusion rests squarely on Hicks. See Lowe, 87 F.3d at 1175 (citing Hicks, 833 F.2d at 1414). Under the correct standard for actionable hostile work environment claims, as stated in Meritor and Harris, Ms. Vigil’s sexual harassment suit withstands summary judgment.
-2- that this standard does not require a plaintiff to show that the conduct complained
of caused “tangible psychological injury.” Harris, 510 U.S. at 21. The Harris
Court was careful to note that:
[t]he appalling conduct alleged in Meritor, and the reference in that case to environments “so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers,” merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable.
Id. at 22 (quoting Meritor, 477 U.S. at 66) (further quotation omitted) (emphasis
added). Thus our claim in Hicks that “Title VII is violated only where the work
environment is so heavily polluted with discrimination as to destroy the emotional
and psychological stability of the minority employee,” 833 F.2d at 1412-13
(quotation omitted), cannot stand.
Moreover, although Tenth Circuit cases subsequent to Harris have repeated
the requirement of Hicks that “there must be a steady barrage of opprobrious
racial comment,” id., for a Title VII claim to lie, see, e.g, Bolden v. PRC Inc., 43
F.3d 545, 551 (10th Cir. 1994), cert. denied, 116 S. Ct. 92 (1995), Harris must at
a minimum color our interpretation of what constitutes a “barrage.” A “barrage”
cannot, consistent with Harris, be found to exist only in cases where the
psychological well-being of a Title VII plaintiff is tangibly affected. See Harris,
510 U.S. at 22 (“So long as the environment would reasonably be perceived, and
-3- is perceived, as hostile or abusive, there is no need for it also to be
psychologically injurious.”). If we are to require a “barrage” at all, then we
must purge the term of its historically-entrenched overtones of psychological
injury. 2
But we should go further and dispense with the requirement of a “steady
barrage” altogether. The Supreme Court has made clear that racial or sexual
harassment is actionable under Title VII whenever the conduct at issue is “severe
or pervasive enough to create an objectively hostile or abusive work
environment—an environment that a reasonable person would find hostile or
abusive.” Harris, 510 U.S. at 21 (emphasis added). If sufficiently severe,
harassment is actionable under Title VII—regardless of its pervasiveness or
frequency. See Harris, 510 U.S. at 23 (determination of objective hostility is
made “by looking at all the circumstances,” including “the frequency of the
discriminatory conduct [and] its severity,” but “no single factor is required.”)
(emphasis added).
2 Harris does require that the victim of actionable harassment “subjectively perceive the environment to be abusive,” 510 U.S. at 21, and to that extent affirms that some minimal psychological component must be alleged for a Title VII hostile work environment claim to lie. Here the appellant regarded the terms used by her supervisor as “derogatory” and amounting to “discrimination.” I R, tabs 5 & 7. Given appellant’s pro se status, these allegations should be construed liberally to hold that appellant has put forward facts sufficient to satisfy the subjective requirement of a hostile work environment claim.
-4- In line with Harris, other circuits have recognized that Title VII hostile
work environment plaintiffs need not prove a pattern, “steady barrage,” or other
minimum quantum of discriminatory conduct in order to establish actionable
harassment. See Torres v. Pisano, No. 96-7939, 1997 WL 290196, *4 n.4 (2d Cir.
June 3, 1997) (“Of
course, even a single episode of harassment, if severe enough, can establish a
hostile work environment.”); Davis v. Monsanto Chem. Co., 858 F.2d 345, 349
(6th Cir. 1988) (“[P]laintiff need not prove that the instances of alleged
harassment were related in either time or type. Rather all that the victim of racial
harassment need show is that the alleged conduct constituted an unreasonably
abusive or offensive work-related environment or adversely affected the
reasonable employee’s ability to do his or her job.”); Rodgers v. Western-
Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir. 1993) (“Within the totality of
circumstances, there is neither a threshold “magic number” of harassing incidents
that gives rise, without more, to liability as a matter of law nor a number of
incidents below which a plaintiff fails as a matter of law to state a claim.”)
(emphasis added); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1274 n.4 (7th Cir.
1991) (recognizing that single, isolated incident of harassment can give rise to
-5- employer liability for racial harassment under Title VII). 3
In its continued reliance on Hicks, this court appears to believe that only
the most egregious cases will give rise to an actionable claim of a hostile work
environment under Title VII. Such a belief is entirely without foundation. As the
Second Circuit has noted even since I requested an en banc rehearing in this case,
Harris stands for a very simple and straightforward proposition: “Whenever the
harassment is of such quality or quantity that a reasonable employee would find
the conditions of her employment altered for the worse, it is actionable under
Title VII, so long as the employee subjectively experienced a hostile work
environment.” Torres, 1997 WL 290196, *5 (citing Harris, 510 U.S. at 21)
(emphasis added). To prove harassment, employees are held only to a standard of
3 Those circuits that continue to insist on a quantitative requirement do so in purported reliance on the Supreme Court’s admonitions in Harris and Meritor that “mere utterance of an . . . epithet which engenders offensive feelings in an employee . . . does not sufficiently affect the conditions of employment to implicate Title VII.” Harris, 510 U.S. at 21; Meritor, 477 U.S. at 67. See, e.g., Kimzey v. Walmart Stores, 107 F.3d 568, 573 (8th Cir. 1996) (citing Meritor, 477 U.S. at 67, for the proposition that “[m]ore than a few isolated incidents are required.”). Such cases fail to recognize that some epithets do far more than engender offensive feelings. As the Supreme Court recognized in Harris, when “discriminatory intimidation, ridicule, and insult . . . is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.” Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 65, 67) (emphasis added). Thus, if “insult” is “sufficiently severe,” Title VII is violated whether or not the insult “pervades” the workplace. The cautionary language of Meritor does no more than point out that the single utterance of a term that engenders offensive feelings cannot substantiate a hostile work environment claim. That does not mean that severely degrading, racially derogatory insult of the worst kind escapes actionability under Title VII simply because it is used only occasionally.
-6- reasonableness. Id. That standard is designed to protect the individual
employee’s statutory right to work in an environment free from racial and sexual
abuse. It is not intended to legitimate the discriminatory practices of a
majoritarian culture. See id. at *5 n.7 (“What is, is not always what is right, and
reasonable people can take justifiable offense at comments that the vulgar among
us, even if they are a majority, would consider acceptable.”); King v. Hillen, 21
F.3d 1572, 1582 (Fed. Cir. 1994) (“The purpose of Title VII is not to import into
the workplace the prejudices of the community, but through law to liberate the
workplace from the demeaning influence of discrimination.”); Ellison v. Brady,
924 F.2d 872, 878 (9th Cir. 1991) (harassment should be analyzed from the
perspective of the victim else “[h]arassers could continue to harass merely
because a particular discriminatory practice was common”) (citing EEOC
Compliance Manual (CCH) § 615, ¶ 3112, C at 3242 (1988) (courts “should
consider the victim’s perspective and not stereotyped notions of acceptable
behavior.”)); see also Winsor v. Hinkley Dodge, Inc., 79 F.3d 996, 1001 (10th
Cir. 1996) (“Just as we would not sanction an industry term that is facially
derogatory to a particular racial or ethnic group, we cannot accept the argument
that industry use of an inherently sex-related term neutralizes its detrimental
effect on women.”).
-7- In affirming summary judgment for the City of Las Cruces, the panel holds
that it is per se unreasonable for a Hispanic worker to consider what she describes
as her supervisor’s “frequent” references to “wetbacks” as being hostile or
abusive. I am disappointed that the panel reaches that conclusion; more
importantly, I can see no legal or factual basis to support it. Cf. Rodgers, 12 F.3d
at 675 (“Perhaps no single act can more quickly alter the conditions of
employment and create an abusive working environment than the use of an
unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of
his subordinates.”) (citations omitted); see also Winsor, 79 F.3d at 1000
(recognizing that sexual epithets are intensely degrading to women); Steiner v.
Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994) (derogatory use of
sexually explicit and offensive terms, such as “dumb-fucking broad,” sufficient to
establish actionable hostile work environment claim), cert. denied, 513 U.S. 1082
(1995); id. at 1464 (use of term “UFOs—ugly fucking orientals” to refer to Asians
sufficient to state actionable racial harassment claim); Boutros v. Canton
Regional Transit Auth., 997 F.2d 198, 202-204 (6th Cir. 1993) (allegations that
supervisors repeatedly referred to Syrian-born bus driver as “camel jockey,”
“camel rider,” “rug peddler,” “heeb,” and instructed him to depart from standard
bus routes, then disciplined him for doing so, sufficient to state Title VII hostile
work environment claim); Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959,
-8- 964 (8th Cir. 1993) (obscene name-calling constitutes harassment based on sex);
Erebia v. Chrysler Plastic Prods. Corp., 772 F.2d 1250, 1256 (6th Cir. 1985)
(“repeated” use of racial slurs against Mexican-American sufficient to support
hostile work environment claim under Title VII standards).
The term “wetback” is severely degrading. See Katz v. Dole, 709 F.2d 251,
254 (4th Cir. 1983) (degrading epithets “deriv[e] their power to wound not only
from their meaning but also from the disgust and violence they express
phonetically”) (quotation omitted). Accordingly, its use hardly needs to be
pervasive for a Hispanic employee to find her work environment hostile and
abusive—and reasonably so. See Rodgers, 12 F.3d at 675-76 (use of term
“nigger” twice by supervisor, in conjunction with three other racially-motivated
statements, sufficient to satisfy “objective prong of the test for Title VII racial
harassment claims.”); cf. Ellison, 924 F.2d at 878 (“[T]he required showing of
severity or seriousness of the harassing conduct varies inversely with the
pervasiveness or frequency of the conduct.”); EEOC Compliance Manual, § 615. ¶
3112, C at 3243 (CCH) (same); Bolden, 43 F.3d at 551-52 (“infrequent” racial
slurs and jokes by coworkers insufficient to defeat summary judgment). While
Ms. Vigil’s pro se allegations that the term was used “frequently” are
understandably not a model of specificity or legal draftsmanship, I cannot see
how the panel is able to construe those allegations to mean that the term may have
-9- been used so infrequently as to preclude Ms. Vigil’s subjective perceptions of a
hostile work environment from being objectively reasonable. 4 See Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986) (summary judgment only appropriate where
non-movant “fails to make a showing sufficient to establish the existence of an
element essential to [her] case”) (emphasis added). Her relative lack of evidence
as to specific individual incidents of harassment may make a jury less likely to
find her work environment objectively hostile, but that does not justify summary
judgment for the defendant on grounds that her allegations of “frequent” usage
are too conclusory. See Torres, 1997 WL 290196, at *4 (“If a jury were to credit
[the] general allegations of constant abuse, . . . it could reasonably find pervasive
4 Ms. Vigil’s allegations do not make clear which Hispanics her supervisor referred to as “wetbacks,” and in particular whether these terms were specifically directed at her. That omission is immaterial. See Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 782 (10th Cir. 1995) (“[E]vidence of a general work atmosphere, including evidence of harassment of other [minority members], may be considered in evaluating a claim.”); Black v. Zaring Homes, Inc., 104 F.3d 822, 826 (6th Cir. 1997) (“[S]ex-based comments need not be directed at a plaintiff in order to constitute conduct violating Title VII.”). Where a supervisor refers frequently to minority members using gross racial slurs, a fellow minority member working under that supervisor and directly exposed to his abuse would be entirely reasonable were he or she to take such comments “personally.” I note in this context that we have already held that “even a woman who was never herself the object of sexual harassment might have a Title VII claim if she were forced to work in an atmosphere where such harassment was pervasive.” Daemi v. Church’s Fried Chicken, Inc., 931 F.2d 1379, 1385 (10th Cir. 1991); see also Rogers v. EEOC, 454 F.2d 234, 238- 39 (5th Cir. 1971) (racially discriminatory treatment of patients may give rise to Title VII claim by worker). The Supreme Court has held that where “the workplace is permeated with discriminatory . . . insult that is sufficiently severe or pervasive to . . . create an abusive working environment, Title VII is violated.” Harris, 510 U.S. at 21 (emphasis added) (internal quotations and citations omitted).
- 10 - harassment, even in the absence of specific details about each incident.”); Fernot
v. Crafts Inn, Inc., 895 F. Supp. 668, 677 (D. Vt. 1995) (“The fact that the
testimony indicated that [the supervisor] was ‘always’ making sexual remarks and
regularly leered [at the plaintiff], rather than giving specific dates, does not
negate its role in establishing a work environment of sufficiently pervasive sexual
harassment.”); see also DiLaurenzio v. Atlantic Paratrans, Inc., 926 F. Supp. 310,
314 (E.D.N.Y. 1996) (pervasiveness of harassing conduct “is the sort of issue that
is often not susceptible of summary resolution.”). The bottom line is that
appellant’s racial harassment claim is far more specific than it is conclusory. We
have the what, the where, the why, and a solid enough idea of the how often. 5
Ms. Vigil’s sex-based claim is also actionable. She alleges she was
subjected to constant unwelcome invitations, and exposed to pornographic,
sexually explicit pictures, and sexual jokes by her immediate supervisor and other
5 At the very least, if courts are to grant summary judgment against pro se litigants on the basis of such nuanced formalisms, they should take care to inform non-movants of their evidentiary burden under Fed. R. Civ. Proc. 56(e). See Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1993) (all pro se litigants entitled to notice of R. 56 evidentiary requirements); cf. Jaxon v. Circle K. Corp., 773 F.2d 1138, 1140 (10th Cir. 1985) (allowing pro se litigant “a meaningful opportunity to remedy the obvious defects in . . . summary judgment materials,” and instructing district courts to “take care to insure that pro se litigants are provided with proper notice regarding the complex procedural issues involved in summary judgment proceedings”). All the indications are that Ms. Vigil failed to translate widely-used and commonly-understood terms like “frequently” and “constantly” into precise, specific numerical equivalents because she had no knowledge of any evidentiary need to do so.
- 11 - airport workers. More specifically, she alleges that her supervisor regularly
requested that she go flying with him, and that when she first arrived at her job,
she found pornography in a manilla folder in her desk drawer. When asked about
the pornography, her supervisor stated that it had belonged to the desk’s previous
occupant. Another employee, however, indicated that the supervisor had given it
to that previous occupant. Ms. Vigil also alleges that her supervisor offered her
pornographic and “X-rated” software.
“Sexual harassment is behavior that would not occur but for the sex of the
employee . . . .” Winsor, 79 F.3d at 1000 (quotation omitted). From her
testimony, it is obvious Ms. Vigil perceived her supervisor’s invitations to be of a
sexual character. Given that her would-be host allegedly offered pornographic
material to appellant and may have lied about providing such material to a
previous female employee, I cannot say her perception was unreasonable. We
should therefore assume for summary judgment purposes that her supervisor’s
invitations were on account of her sex. See id. at 1000-01.
Moreover, I see no basis to conclude that her supervisor’s invitations could
not amount to an objectively “intimidating, hostile, or offensive working
environment.” Hirase-Doi, 61 F.3d at 782 (quotation omitted). Considering the
record as a whole and the totality of circumstances, including the nature of the
sexual advances and the context in which they occurred, see Gross v. Burggraf
- 12 - Constr. Co., 53 F.3d 1531, 1537 (10th Cir. 1995), appellant has alleged
harassment severe or pervasive enough to constitute an objectively hostile work
environment. Appellant’s male supervisor constantly invited her flying despite
her frequent disclaimers of interest in flying. He allegedly offered her
pornographic materials and may have lied to her about his provision of similar
materials to a previous female employee. Reasonable minds may differ in
analyzing the sum of these facts. Ultimately, therefore, the question of whether
the supervisor’s sexual behavior was abusive or merely offensive should also have
been left to a jury.
The test established by the Supreme Court for actionable harassment looks
to “all the circumstances” of the harassment, including a number of factors that
contribute to abusiveness, none of which is required or determinative. Harris, 510
U.S. at 23. As Justice Scalia has recognized, “objective abusiveness” is therefore
an inherently “vague” standard that provides few parameters for juries to decide
when legal harm has been suffered. Harris, 510 U.S. at 24 (Scalia, J.,
concurring). But, as Justice Scalia notes, there is “no test more faithful to the
inherently vague statutory language,” of Title VII. Id. at 25. Today, this court
continues to put forward a standard for actionable harassment that is far more
specific: severely degrading racist epithets must “barrage” a plaintiff before she
may have recourse to the protections of federal law. In so doing, we ignore the
- 13 - Supreme Court’s faithfulness to the language of Title VII. Our reliance on Hicks
contravenes the spirit and the letter of the Supreme Court’s considered
jurisprudence on hostile work environment claims. I respectfully dissent from my
colleagues’ refusal to correct this misplaced reliance.
- 14 -