Appellate Case: 20-3230 Document: 010110823338 Date Filed: 03/08/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 8, 2023 _________________________________ Christopher M. Wolpert Clerk of Court LINDA WILLIAMS,
Plaintiff - Appellant,
v. No. 20-3230 (D.C. No. 6:18-CV-01252-EFM) AEROFLEX WICHITA, INC.; LORI (D. Kan.) CROMWELL,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, Chief Judge, and EBEL and EID, Circuit Judges. _________________________________
Linda Williams sued her employer, Aeroflex Wichita, Inc., and her former
supervisor, Lori Cromwell, under Title VII for hostile work environment, racial
discrimination, and retaliation. She also brought a claim for intentional infliction of
emotional distress against Cromwell. The district court granted judgment on the
pleadings on the intentional infliction of emotional distress claim in favor of
Cromwell and summary judgment on the Title VII claims in favor of Aeroflex and
Cromwell. Williams appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 20-3230 Document: 010110823338 Date Filed: 03/08/2023 Page: 2
I.
Linda Williams began working for Aeroflex in the customer service
department in 1999. Customer service is generally an entry-level position, and most
Aeroflex employees only stayed in the department for a few years. By the time she
filed this suit, Williams had worked there for over twenty years.
Lori Cromwell became Williams’ supervisor in September 2000. Their
relationship was contentious from almost the very beginning. In her complaint,1
Williams, who is African American, alleged a long list of poor treatment she suffered
at Cromwell’s hands. She alleged Cromwell made derogatory comments about her
hair and appearance, publicly belittled her several times a week, harassed her over
small errors in her work, enforced a stricter dress code with Williams than other
employees, made fun of her in front of other employees, and once whispered in a
threatening manner that she was watching Williams. In addition to general
harassment, Williams specifically recalled one incident when Cromwell told her the
scent of Williams’ hair oil made her want to vomit; another when Cromwell asked
her how many times she was going to change her wig; a time when Cromwell told
Williams she looked like Richard Simmons, which she intended as an insult; and an
incident when Cromwell threw papers on the floor and made Williams pick them up.
1 At the motion to dismiss stage we treat all Williams’ allegations as true, Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008), and at the summary judgment stage, we view all evidence in a light most favorable to her and make all reasonable inferences in her favor, Tabura v. Kellogg USA, 880 F.3d 544, 549 (10th Cir. 2018). 2 Appellate Case: 20-3230 Document: 010110823338 Date Filed: 03/08/2023 Page: 3
Finally, in late 2016, Cromwell recommended Williams receive a “1” on her
performance review, which was lower than other employees. However, Cromwell’s
superiors overruled her and raised the evaluation to a “2” (in line with the other
employees) before adding it to Williams’ official file.
This behavior did not go unnoticed by Williams’ coworkers. One coworker,
Erin Craig, believed Cromwell “was always different with [Williams],” and might
have been prejudiced based on “just the way her—the tone of her voice would
change.” App’x Vol. II at 98. Another coworker, Emily Trimpe, testified she
thought Cromwell treated Williams unfairly, and she felt “everybody else got
common courtesies that [Williams] didn’t get.” Id. at 14. Trimpe did not think
Cromwell was “necessarily motivated by the fact that Linda was nonwhite.” Id.
at 119. Neither Craig nor Trimpe recalled a specific instance where Cromwell
treated Williams differently than an employee of a different race, and neither
reported this behavior to Human Resources.
Cromwell’s behavior was not unique to Williams. One of the only other
African American employees Cromwell supervised wrote in her exit letter, “there is a
high level of tension created by [Cromwell] in the air which caused me to feel that I
had to walk on eggshells to approach her for a simple question, and hope that she
didn’t get irritated.” App’x Vol. III at 33–34. Other employees noted Cromwell had
a “direct . . . straight to the point style” and that she “was inconsistent, played
favorites, and did not offer much encouragement to employees.” App’x Vol. I
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at 195–96 (internal quotation marks omitted). In addition, Cromwell’s department
had a high turnover rate.
Williams reported Cromwell’s behavior numerous times. In 2003, she made a
complaint to the then-director of Human Resources, Marjie Hale. Williams told Hale
that it felt like Cromwell was “picking on her,” and she hoped Cromwell was not
prejudiced but feared she might be. App’x Vol. III at 37, 233. Nine years later, she
complained again to Connie Tindal, who succeeded Hale, after being “singled out
and put under a magnifying glass” for making mistakes. Id. at 144 (capitalization
omitted). Tindal reported that Williams implied Cromwell’s treatment “may be
racially motivated” but did not offer any examples of discriminatory treatment.
App’x Vol. I at 188–89. In October 2016, Williams sent an email with the subject
line “My Cry for Help” to Tindal and Martin Burgess, the Executive Vice President
for Human Resources at Aeroflex’s parent company. In the email, Williams told
them her relationship with Cromwell was “abusive,” she felt “put on the spot,
degraded or threatened for the loss of [her] job,” and that she had been “harassed,
belittled, [and] humiliated on more than one occasion.” App’x Vol. II at 180–81.
She specifically mentioned an incident when Cromwell had issued Williams a
disciplinary warning for violating the break time policy on a day when Cromwell had
not been present. Cromwell later withdrew the disciplinary warning.
Aeroflex investigated the accusations in Williams’ email, interviewing
Williams and other employees under Cromwell’s supervision and reviewing other
employees’ exit interviews. Other employees expressed a belief that Cromwell was
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“belittling” and “controlling” to her employees, App’x Vol. VI at 55, but none
reported prejudice or that Cromwell singled out Williams for particularly bad
treatment. When asked directly whether Cromwell treated Williams differently
because of her race, one employee said, she “did not know, maybe.” App’x Vol. III
at 175. As a result of the investigation, Aeroflex counseled Cromwell on her
management style. The company allowed Williams to transfer to a different manager
in her department. Aeroflex did not decrease Williams’ salary, cut any of her
benefits, or give her a worse evaluation than any of her coworkers. Aeroflex also
referred Williams to the employee assistance program for her anxiety and stress,
which had manifested in weight fluctuations, uncontrollable crying, and hair loss.
Shortly before Williams sent her “Cry for Help” email, Aeroflex put some
employees in the customer service department, including Williams, on a pass-fail rate
program. The program was designed to catch an employee’s errors and help them
improve accuracy. Aeroflex had used the pass-fail rate program in the past. As a
result of the program, Williams’ accuracy improved from seventy-six percent to
ninety-four percent.
In late October 2016, while the investigation into her “Cry for Help” email
was ongoing, Williams filed complaints with the Kansas Human Rights Commission
(“KHRC”) and the Equal Employment Opportunity Commission (“EEOC”) alleging
violations of state and federal antidiscrimination statutes. She specifically alleged
Aeroflex had discriminated against her because of her race and her age from April
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through August 2016. The KHRC investigated her allegations and held a mediation.
The EEOC issued a right-to-sue letter on June 20, 2018.
Williams then filed this suit against Aeroflex and Cromwell for violations of
Title VII under theories of hostile work environment, retaliation, and racial
discrimination. She also sued Aeroflex for negligent hiring and retention, negligent
training or failure to train, and negligent supervision and sued Cromwell for
intentional infliction of emotional distress and negligent infliction of emotional
distress under Kansas law.
The district court granted judgment on the pleadings on Williams’ negligent
hiring and retention, negligent training or failure to train, and negligent supervision
claims against Aeroflex and the negligent and intentional infliction of emotional
distress claims against Cromwell. It granted summary judgment on all remaining
claims in favor of Aeroflex and Cromwell. Williams appeals the dismissal of her
Title VII claims against both Aeroflex and Cromwell and her intentional infliction of
emotional distress claim against Cromwell.
II.
a.
We begin with Williams’ Title VII claims. On appeal, we review a grant of
summary judgment de novo and apply the same standard as the district court.
Fassbender v. Correct Care Solutions, LLC, 890 F.3d 875, 882 (10th Cir. 2018). We
will uphold the district court’s grant of summary judgment if Aeroflex and Cromwell
can show there is no genuine issue of material fact and they are entitled to judgment
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as a matter of law. Tabura, 880 F.3d at 549. We view all evidence in the light most
favorable to Williams and resolve all reasonable inferences in her favor. Id.
Williams argues Cromwell created a hostile work environment by engaging in
a years-long campaign of humiliation and degradation against Williams because of
her race, which Aeroflex tolerated.
Under Title VII, an employer may be liable for creating or permitting a hostile
work environment when an employee can show “that the workplace is permeated
with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Sandoval v. City of Boulder, Colo., 388 F.3d 1312, 1327
(10th Cir. 2004). The plaintiff must prove the treatment stemmed from racial
animus, id., and that the employer was responsible because it failed to remedy a
hostile work environment of which it knew or should have known, Tademy v. Union
Pacific Corp., 614 F.3d 1132, 1139 (10th Cir. 2008).
To prove racial animus, our court has long accepted evidence of “‘facially
neutral abusive conduct . . . when that conduct is viewed in the context of other,
overtly racially-discriminatory conduct.’” Hernandez v. Valley View Hosp. Ass’n,
684 F.3d 950, 960 (10th Cir. 2012) (internal brackets omitted) (quoting O’Shea v.
Yellow Cab Servs., 185 F.3d 1093, 1097 (10th Cir. 1999)). Overtly racially
discriminatory conduct can include, for example, ongoing offensive or inappropriate
racist comments and racial slurs, Ford v. Jackson Nat’l Life Ins. Co., 45 F.4th 1202,
7 Appellate Case: 20-3230 Document: 010110823338 Date Filed: 03/08/2023 Page: 8
1233–34 (10th Cir. 2022), or “a steady barrage of opprobrious racial comments,”
Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994). However, “[g]eneral
harassment if not racial . . . is not actionable.” Id.
Williams’ evidence contains numerous instances of neutral abusive conduct,
including Cromwell’s comment about her hair smell, the paper throwing incident,
and Cromwell’s general poor treatment. But she fails to show the “steady barrage” of
“blatant racial harassment” needed to support her claim for a hostile work
environment. See id.
Williams argues our decision in Strickland v. United Parcel Service, Inc., 555
F.3d 1224 (10th Cir. 2009), “provides a good example of how neutral conduct can
create [] a triable question regarding discriminatory animus” such that she can
advance past summary judgment without showing any overt racial animus. Aplt. Br.
at 44. In Strickland, the female plaintiff alleged she was treated differently than her
male colleagues by her male supervisor. 555 F.3d at 1230. Her allegations were
backed up by her male and female colleagues, who testified the supervisor treated her
differently than everyone else. Id. Many mentioned a specific example where the
supervisor had put the plaintiff, but not her male colleague, on a performance
improvement plan even though the male coworker “trailed [her] in nearly every sales
measure.” Id. Williams analogizes the testimony from Strickland’s coworkers to
that of Trimpe and Craig. However, unlike in Strickland, Trimpe and Craig’s
testimony was vague and equivocal, and neither could point to any specific instance
where Cromwell treated Williams differently than a similarly situated non–African
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American employee. Craig even testified that, while she “really believed” Cromwell
was prejudiced, “I don’t have any evidence.” App’x Vol. II at 98. Trimpe likewise
testified that, while Cromwell did treat Williams differently, “I don’t know that it
was necessarily motivated by the fact that [Williams] was nonwhite. I don’t think that
was necessarily what motivated her.” Id. at 119. This testimony falls short of
proving Williams was treated differently because of her race, and Williams therefore
fails to make a prima facie case for a hostile work environment under Title VII. We
hold the district court did not err in granting summary judgment to Aeroflex and
Cromwell on this claim.
As to her Title VII retaliation claim, Williams argues the increased scrutiny
over her work and the fact that Aeroflex put her on the pass-fail rate program are
evidence Aeroflex and Cromwell retaliated against her for reporting Cromwell’s
actions. We apply the McDonnell Douglas burden-shifting analysis to Title VII
retaliation claims when the plaintiff does not have direct evidence of a retaliatory
motive. Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973)). Under this framework, the
plaintiff must show (1) “he or she engaged in protected opposition to discrimination”;
(2) he or she suffered an employment action that a reasonable employee would have
found materially adverse; and (3) there was a causal connection between the
protected activity and the materially adverse employment action. Piercy v. Maketa,
480 F.3d 1192, 1198 (10th Cir. 2007). Then, if the plaintiff establishes a prima facie
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case, “the employer can rebut it by articulating a legitimate nondiscriminatory reason
for the adverse action.” Id. (internal quotation marks omitted). The employee must
then show “the proffered reason actually is a pretext masking discriminatory
animus.” Id.
We “liberally construe the phrase adverse employment action,” Stover, 382
F.3d at 1071 (cleaned up), and have found an adverse employment action may
“extend beyond readily quantifiable losses,” MacKenzie v. City and Cnty. of Denver,
414 F.3d 1266, 1279 (10th Cir. 2005) (quoting Smart v. Ball State Univ., 89 F.3d
437, 441 (7th Cir. 1996)), abrogated on other grounds by Lincoln v. BNSF Ry. Co.,
900 F.3d 1166 (10th Cir. 2018), as long as “the action is ‘harmful to the point that [it]
could well dissuade a reasonable worker from making or supporting a charge of
discrimination,’” Payan v. United Parcel Serv., 905 F.3d 1162, 1172 (10th Cir. 2018)
(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)).
However, “petty slights, minor annoyances, and simple lack of good manners” are
not sufficient. Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1216 (10th Cir. 2010)
(quoting Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68). “[N]ot everything that
makes an employee unhappy is an actionable adverse action. Otherwise, minor and
even trivial employment actions that an irritable chip-on-the-shoulder employee did
not like would form the basis of a discrimination suit.” MacKenzie, 414 F.3d
at 1279.
Williams argues Cromwell and Aeroflex subjected her to adverse employment
actions by scrutinizing and criticizing her more than her coworkers, by putting her on
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the pass-fail rate program, and by giving her a lower evaluation. But “in our circuit,
a [performance improvement plan], standing alone, is not an adverse employment
action” unless “it effects a significant change in the plaintiff’s employment status.”
Ford, 45 F.4th at 1226 (internal quotations marks omitted); see also Payan, 905 F.3d
at 1174 (“ . . . placement on an employee improvement plan alone does not qualify as
a materially adverse action as defined by Burlington Northern.”). Further, “Title VII
protects individuals not from all retaliation but only from retaliation that produces an
injury or harm that itself rises to a level of seriousness.” Johnson, 594 F.3d at 1216
(internal quotation marks omitted) (quoting Williams v. W.D. Sports, N.M., Inc., 497
F.3d 1079, 1087 (10th Cir. 2007)). Williams was not fired, demoted, denied benefits,
reassigned to an inferior position, or denied a promotion. She was not the only
employee put on the pass-fail rate program, and, as a result of the program, her
accuracy improved almost twenty percent. While Cromwell did attempt to give
Williams a lower evaluation than other employees, the company raised the evaluation
before it went in Williams’ official file.
Without more, this increased scrutiny and the pass-fail rate program would not
“cause a reasonable employee to for[]go exercising [her] rights under Title VII,”
Payan, 905 F.3d at 1173, and therefore do not rise to the level of an adverse
employment action required to sustain a Title VII retaliation claim. We therefore
hold the district court did not err in granting summary judgment to Aeroflex and
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iii.
Williams next argues the district court erred in granting summary judgment to
Cromwell and Aeroflex on her Title VII racial discrimination claim after finding
Aeroflex did not subject her to an adverse employment action.
We apply the same McDonnell Douglas burden-shifting framework to
Title VII discrimination claims. Fassbender, 890 F.3d at 883. To make a prima facie
case for discrimination, the plaintiff “must establish that (1) she is a member of a
protected class, (2) she suffered an adverse employment action, (3) she qualified for
the position at issue, and (4) she was treated less favorably than others not in the
protected class.” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).
The adversity standard for a Title VII discrimination claim is more stringent
than for a retaliation claim. See Piercy, 480 F.3d at 1203 n.12. For the purposes of a
discrimination claim, the employer’s actions must have “affect[ed] employment or
alter[ed] the conditions of the workplace.” Id. (quoting Burlington N. & Santa Fe Ry.
Co., 548 U.S. at 63). Because, as discussed above, Williams has not shown she
suffered an adverse employment action under the more lenient retaliation standard,
she cannot establish a prima facie case for Title VII racial discrimination, and we
need not examine the other elements of the claim. We therefore affirm the district
court’s grant of summary judgment to Aeroflex and Cromwell on this claim.
b.
Finally, Williams argues the district court erred in granting judgment on the
pleadings in favor of Cromwell on her intentional infliction of emotional distress
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claim by finding Williams did not allege sufficiently extreme and outrageous
conduct.
We review dismissals granted under Rule 12(c) de novo. Corder v. Lewis
Palmer School Dist. No. 38, 566 F.3d 1219, 1223 (10th Cir. 2009). Under this
standard, we do not weigh potential evidence; we only assess whether the plaintiff’s
claim is legally sufficient to state a claim for which relief may be granted. Id.
at 1223–24. To state a claim for intentional infliction of emotional distress or
outrage under Kansas law, a plaintiff must show (1) the defendant acted intentionally
or with reckless disregard for the plaintiff; (2) the defendant’s conduct was extreme
or outrageous; (3) the plaintiff suffered extreme and severe mental distress; and
(4) there is a causal connection between the defendant’s conduct and the plaintiff’s
mental distress. Bolden, 43 F.3d at 553. “Kansas courts have been reluctant to
extend the outrage cause of action to [workplace] discrimination and harassment
claims,” and we have extended it in only a few cases. Id. at 554. Intentional
infliction of emotional distress is for conduct that is “extreme and utterly
intolerable,” not for hurt feelings or workplace unhappiness, even if the conduct is
inappropriate and unnerving. Id. at 554–55. Conduct must be “outrageous to the
point that it goes beyond the bounds of decency and is utterly intolerable in a
civilized society.” Taiwo v. Vu, 822 P.2d 1024, 1029 (Kan. 1991).
Williams contends Cromwell’s “discriminatory and racist conduct . . . coupled
with its consistency and length of time [constitutes] severe and outrageous conduct.”
Aplt. Br. at 60. But in Bolden, we held explicitly racist name-calling, “inappropriate
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and unnerving” slurs and jokes, poor performance reviews, and suboptimal work
assignments over a period of five years were “not so extreme and outrageous as to
permit recovery” under Kansas law. 43 F.3d at 549–50, 554–55. Laughinghouse v.
Risser, 754 F. Supp. 836 (D. Kan. 1990), a workplace harassment case to which
Williams compares her case, is distinguishable. In Laughinghouse, the court
declined to grant summary judgment where the defendant-employer harassed and
abused an employee by (1) screaming and cursing at her; (2) touching and directing
sexual comments towards her without permission; (3) throwing things at her and
tearing up files in fits of rage; (4) threatening her with loss of employment; and
(5) inhibiting her job performance through several tactics after the employee declined
to sleep with him. 754 F. Supp. at 843. The conduct Williams alleges in her
complaint—including the derogatory comments, the one time Cromwell threw papers
on the floor and made Williams pick them up, and the time Cromwell whispered she
was watching Williams—does not reach this level. She does not allege unwanted
touching, repeated screaming, cursing, yelling, or threats of loss of employment.
Compare id. (describing conduct that was so outrageous as to be actionable). While
undoubtedly unpleasant, Cromwell’s actions do not meet the “extreme and
outrageous” conduct Kansas courts require.
We therefore hold the district court did not err in granting judgment on the
pleadings to Cromwell on Williams’ intentional infliction of emotional distress
claim.
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For the reasons above, we AFFIRM the district court’s grant of summary
judgment to Aeroflex and Cromwell on Williams’ Title VII claims and grant of
judgment on the pleadings to Cromwell on Williams’ intentional infliction of
emotional distress claim.2
Entered for the Court
Allison H. Eid Circuit Judge
2 Appellant’s motion to seal Volumes V and VI of the appendix is granted. However, the court has cited to and quoted from the portions of those volumes that appear in the parties’ publicly filed briefs. 15