                                                                        F IL E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                                       PUBLISH
                                                                         April 18, 2007
                   U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
                                T E N T H C IR C U IT



 SHA RO N ELA INE A LLEN
 HOLM ES, DELORES M .
 G IA CO LETTO , JO D IE JA CK SON,
 and RH ONDA E. STEPH EN S ,

       Plaintiffs-Appellants /Cross-
       Appellees,

 v.                                             Nos. 05-4179, 05-4180, 05-4199


 STA TE OF U TA H , D EPA RTM ENT
 OF W ORK FORC E SERVICES ,

       Defendant-Appellee/Cross-
       Appellant.



        A PPE A L FR O M T H E U N IT ED ST A T ES D IST R IC T C O U R T
                        FO R T H E D IST R IC T O F U TA H
             (D .C . N O S. 2: 03-C V -909-T C and 2:03-C V -916-T C )


D. Bruce Oliver, Attorney at Law , Salt Lake City, Utah, for Appellants/Cross-
Appellees Holmes, Giacoletto and Jackson.

John L. Black, Jr., Attorney at Law, Salt Lake City, Utah, for Appellant/Cross-
Appellee Stephens.

Reha Deal, Assistant Utah Attorney General, Utah Attorney General’s O ffice, Salt
Lake City, Utah, for Appellee/Cross-Appellant .
Before T Y M K O V IC H , and B A LD O C K , Circuit Judges, and FIG A , District
Judge. *


FIG A , District Judge.


                          I. JU R ISD IC T IO N FO R A PPE A L

      These consolidated appeals arise from an order entered June 13, 2005

granting summary judgment in favor of the defendant employer, Utah Department

of W orkforce Services (“DW S”), on plaintiffs’ Title VII claims of sexual

harassment and sexually hostile w ork environment (See the “Order” found in

App., Vol. 1 at 52-62). 1 Plaintiffs appeal the entry of judgment for the employer.

The employer cross-appeals from a discovery order denying it access to one

plaintiff’s medical records. (See Appellees’ Br. at 39-49). A Final Judgment was

entered on June 14, 2005. Jurisdiction for the appeal lies under 28 U.S.C. § 1291.

                              II. SU M M A R Y O F C A SE

      As set forth in the opinion of the district judge, the plaintiffs’ claims arise

primarily from the conduct of one Curtis Johnson, who was their supervisor at the


      *
         The Honorable Phillip S. Figa, United States District Judge for the
District of Colorado, sitting by designation.
      1
        The Record on Appeal in this case consists of four volumes of
Appendices which are cited herein as “App. Vol. __”, two volumes of
supplemental appendices, cited as “Supp. App. Vol __” and one volume of a
confidential appendix filed under seal, cited as “Conf. App. Vol. 5 ”

                                           -2-
Cedar City office of DW S. Initial allegations of sexual harassment were made

against Johnson in 2001, resulting in an investigation and a three-day suspension

of Johnson without pay on August 7, 2001. Johnson retired from DW S on June

28, 2002, but continued to visit the Cedar City office thereafter because his wife

still w orked there.

       In M arch 2003, new allegations of harassment by Johnson were made by

Plaintiff Stephens relating to his follow ing her from the D W S office to the post

office. In response to those allegations, the state agency sent an investigator,

John Levanger, to investigate the charges in M arch 2003, and the investigation

resulted in M r. Johnson being barred from the Cedar City office and being

prohibited from calling its main telephone line (O rder at 2).

       Thereafter, each of the four plaintiffs filed charges of discrimination with

the EEOC on four different dates in M arch and April of 2003 as further discussed

below, alleging sexual harassment or hostile work environment. After receiving

notices of right to sue, Plaintiffs H olmes, Giacoletto and Jackson filed their Title

VII case (“Holmes, et al.”) against DW S on October 14, 2003. 2 Plaintiff Stephens




       2
       The complaint in Holmes, et al., filed October 14, 2003, is found in the
App. Vol. 1, at 13–25.

                                          -3-
filed a separate action on October 16, 2003 (“Stephens Complaint”). 3 The two

actions were consolidated by the trial court on January 29, 2004 (O rder at 1).

      As the district court found, the plaintiffs in the Holmes, et al. case alleged

violations of Title VII essentially arising from a continuing sexually hostile work

environment relating primarily to the actions of Johnson (Order at 1), but also

referring to harassment and intimidation allegedly expressed by Levanger in his

M arch 2003 investigation. See Order at 2, n.1; Holmes, et al. Complaint at ¶¶ 45-

48, App. Vol. 1 at 20. The Stephens Complaint contained four causes of action,

the first alleging a violation of Title VII resulting from quid pro quo sexual

harassment (denial of promotion), the second alleging a violation of Title VII

resulting from a continuing sexually hostile work environment, and the third and

fourth alleging state common law causes of action for negligent hiring and

intentional infliction of emotional distress. See Order at 2, n.1; Stephens

Complaint at ¶¶ 28-50, App. Vol. 1 at 41-44. The Stephens Complaint makes no

express reference to the Levanger investigation.

      Defendant filed a motion for summary judgment on August 30, 2004

pertaining to both cases, but setting forth some joint and some separate grounds

for dismissal as to each case. See Def’s M o. for Summ. J., App. Vol. 2 at 1-3. A s




      3
         The Stephens complaint, filed October 16, 2003, is found in the App.
Vol. 1, at 36-45.

                                         -4-
to Plaintiffs Holmes and Jackson in the Holmes, et al. case, and as to the First

Cause of Action alleged by Plaintiff Stephens, the motion asserted that the claims

of all three plaintiffs w ere subject to dismissal because they did not file their

charges of discrimination within 300 days of the last alleged act of sexual

harassment (id. at 1-2). As to the First Cause of Action in the Stephens case, the

motion also argued that the plaintiff was not promoted for a legitimate

nondiscriminatory reason, thereby entitling the defendant to judgment as a matter

of law (id. at 2). The motion also asserted that Plaintiff Stephens’ Third and

Fourth Causes of Action were barred by sovereign immunity (id.). The motion

did not explicitly seek summary judgment on Plaintiff Stephens’ Second Cause of

Action for hostile w ork environment. Finally, the motion contended that all

claims of all plaintiffs should be dismissed because their allegations did not

constitute claims for hostile work environment as a matter of law, and because

defendant exercised reasonable care to prevent and promptly correct any harassing

behavior and plaintiffs failed to take advantage of the preventive or corrective

opportunities provided to them by the employer to avoid harm (id. at 2).

                     III. T H E D IST R IC T C O U R T ’S O R D E R

      The district court granted summary judgment against all four plaintiffs,

finding separately as to each plaintiff that most of the acts of alleged sexual

harassment or hostile work environment set forth in the complaint occurred more



                                           -5-
than 300 days before each plaintiff filed her charge of discrimination with the

EEOC, and therefore were barred (Order 6-11). The district court also found that

to the extent any of the acts charged occurred during the 300-day period

preceding the charge, sometimes referred to as the filing period, they were not

sufficient by themselves to constitute hostile work environment claims. The

Court further ruled that the alleged acts that occurred within the 300-day period

did not have a sufficient “relationship” to the acts alleged which occurred outside

the 300-day period so as to be part of the “same hostile work environment” under

the Tenth Circuit decision in Duncan v. M anager, Dep’t of Safety, City and

County of Denver, 397 F.3d 1300, 1308 (10th Cir. 2005) (Order at 7, 8 and 11),

and that standing alone, the incidents w ithin the filing period were insufficient to

state a claim for hostile work environment. The district court also disposed of the

claim that the Levanger investigation constituted a hostile work environment in a

footnote stating there were no facts to support the “broad assertions of harassment

in this respect.” (O rder at 2, n.1).

       In addition, the district court’s order noted that Plaintiff Stephens’

acknowledged that her third and fourth causes of action were barred by the Utah

Governmental Immunity Act (Order at 9, n. 2). Plaintiff Stephens states in her

appellate brief that she is not challenging the grant of summary judgment as to her




                                          -6-
first, third and fourth causes of action, but only as to the second cause of action

(hostile work environment) (Stephens’ A ppellate Br. at 2-3).

       The trial court ruling notes that Johnson retired from the DW S on June 28,

2002 (Order at 2). His contacts with the plaintiffs thereafter were not in the

capacity of a supervisor, or even as a fellow employee, but rather as a former

supervisor, former co-worker, or spouse of a co-worker. He continued to visit the

Cedar City office because his wife continued to work for defendant at that

location (id.).

                                  IV . A N A L Y SIS

       As the district court granted summary judgment, we review the district

court's decision de novo, drawing all inferences in favor of the parties opposing

summary judgment. Chavez v. New M exico, 397 F.3d 826, 831 (10th Cir. 2005).

Here, the parties do not dispute the following dates of each plaintiffs’ filing of

EEOC charges, or the dates 300 days preceding the date of the filing of each

charge (sometimes referred to as the “filing period”), during which period each

plaintiff must have asserted an act of discrimination occurred as the trial court

found:

       Plaintiff          Date of EEOC Charge 4        300 days prior




       4
         Copies of the EEOC charges filed by all four plaintiffs are found in App.
Vol. 2 at 308, 310, 312 and 314.

                                          -7-
      Holmes                    M arch 22, 2003      M ay 27, 2002       (Order at 6)

      Giacoletto                M arch 21, 2003      M ay 26, 2002       (Order at 7)

      Jackson                   April 5, 2003        June 10, 2002       (Order at 8)

      Stephens                  April 1, 2003        June 6, 2002        (Order at 9)

The appellate brief of Plaintiffs Holmes, Giacoletto and Jackson expressly agrees

that the 300 day “filing periods” set forth above are correct, conceding that in

each case the particular plaintiff “must have alleged incidents of harassment or

discrimination that occurred on and after” these dates (see Appellate Br. of

Appellants Holmes, Giacoletto and Jackson (“Joint Brief”) at 1, 15, 17 and 22).

Plaintiffs argue that they did so; the district court found otherwise. Following the

approach of the district judge, this opinion deals separately with each plaintiff’s

particular factual situation.

      A.     Plaintiff Jackson

      Plaintiff Jackson’s case is perhaps the most straightforward to decide. A s

the district judge found, Plaintiff Jackson signed a typewritten attachment to her

EEOC charge in which she details the alleged acts of harassment comm itted by

Johnson, the last of which occurred in 2001. See App. Vol. 4 at 33-41.

Accordingly, she does not appear to allege any specific act of sexual harassment

that occurred after June 6, 2002 as the district judge found (O rder at 8-9).




                                           -8-
      In her appellate brief Plaintiff Jackson merely asserts that she described

several specific acts of harassment by Johnson that are reported in her EEOC

charge (Joint Brief at 17-20). But as the district court found, and as w e concur,

they all occurred w ell before June 10, 2002. The Joint Brief asserts that she also

reported conduct that “continued well after 2001" attributing inappropriate

comm ents to Johnson (id. at 20) but the brief provides no specific incidents or

dates (see App. Vol. 2 at 296). To the extent these assertions are found in her

typewritten statement, there are also no dates. Therefore, to the extent the district

concluded that Plaintiff Jackson failed to allege sufficient acts of harassment

within the filing period, this Court agrees.

      Finally, Plaintiff Jackson, as do the other plaintiffs in Holmes, et al.,

asserts that the conduct of Levanger’s investigation in M arch 2003 constitutes an

act creating a hostile work environment. This separate allegation is addressed

below.

      B.     Plaintiff H olm es

      This plaintiff’s claim is perhaps the next most straightforward case because

in December 2001, long before she filed her EEOC charge, and well beyond the

300-day filing period, she transferred out of the Cedar City office to a different

DW S location (Order at 6). Thus after December 2001, she was no longer under

Johnson’s supervision. M oreover, the only conduct that she alleges occurred after



                                          -9-
the M ay 27, 2002 date (i.e., during her filing period) was an incident on June 3,

2002, when she went back to the Cedar City office for the purpose of visiting

friends (apparently not on job-related business) and Johnson hugged her allegedly

in “an inappropriate manner” (id. at 6).

      The trial court found the fact that Plaintiff Holmes was not working in the

allegedly hostile work environment of the C edar City office for over a year before

she filed her EEOC charge, essentially precludes her harassment claim, and the

single incident which occurred in M ay 2002 was not enough to create a “hostile

work environment” as: 1) it occurred long after she had left the allegedly hostile

environment of the Cedar City office; 2) it occurred when plaintiff was no longer

working in any capacity with Johnson; and 3) there was no relationship between

this alleged act and the acts that occurred before the filing period so as to make a

pattern of continuing acts to support a hostile environment claim. Plaintiff

Holmes’ transfer constituted “an intervening act rendering the hug not part of the

same hostile working environment she experienced before her transfer” under the

Duncan analysis (id. at 7).

      As the trial court correctly noted, the Duncan opinion contains a number of

general propositions that plainly limit a Title VII plaintiff’s entitlement to link

together disparate acts of discrimination in an effort to establish a pattern of

sexual harassment amounting to a hostile work environment. For example, the



                                           -10-
Duncan panel stated: “Title VII is not intended to allow employees to dredge up

old grievances; they must promptly report and take action on discriminatory acts

when they occur. U nlitigated bygones are bygones.” 397 F.3d at 1308.

         In analyzing National Railroad Passenger Corp. v. M organ, 536 U.S. 101,

117 (2002), the Supreme Court case recognizing that so long as an act

contributing to the hostile work environment took place inside the 300-day filing

period, acts outside the period may be considered to complete the history of acts

comprising the hostile environment, Judge M cConnell wrote for the Duncan

panel:

               M organ explains that when analyzing a hostile work
               environment claim spanning longer than 300 days “[a]
               court's task is to determine whether the acts about which
               an employee complains are part of the same actionable
               hostile work environment practice, and if so, whether
               any act falls within the statutory time period.” Id. at 120.
               M organ emphasizes that there must be a relationship
               between acts alleged after the beginning of the filing
               period and the acts alleged before the filing period: “if
               an act on day 401 had no relation to the acts between
               days 1-100, or for some other reason, such as certain
               intervening action by the employer, was no longer part
               of the same hostile environment claim, then the
               employee cannot recover for the previous acts, at least
               not by reference to the day 401 act.” Id. at 118.

397 F.3d at 1308-09. The panel further summarized the application of M organ as

follows:

               M organ holds that a series of alleged events comprises
               the same hostile environment where “the pre- and post-

                                           -11-
             limitations period incidents involve[d] the same type of
             employment actions, occurred relatively frequently, and
             were perpetrated by the same managers.” Id. at 120

397 F.3d at 1309.

      As noted above, the district court in the instant case applied the above

analysis, finding that the departure of Plaintiff Holmes from the Cedar City office

constituted an “intervening act” that separated her from the allegedly hostile work

environment. The district court therefore found that the one act that occurred in

M ay 2002, was not sufficiently linked to the past conduct so as to rise to the level

of creating a hostile work environment with respect to Plaintiff Holmes. Based

on the above circumstances, this panel agrees that the district court properly

found that the one incident which allegedly occurred in June 2002 was not

sufficiently severe and pervasive to constitute an environment of sexual hostility

with respect to Plaintiff Holmes, nor can the incident be linked with prior

incidents to constitute a sexually hostile w ork environment.

      This panel would also note that it appears Plaintiff Holmes did not file any

contem poraneous complaint, much less a contemporaneous EEOC charge, in

connection with the June 3, 2002 incident. 5 Thus, there is some doubt whether

      5
         In an affidavit submitted in opposition to defendant’s motion for
summary judgment, Plaintiff Holmes describes the June 3, 2002 incident as
mortifying, but does not state she reported it to the employer (Conf. App. Vol. 5
at 9.). Elsewhere in her affidavit, Plaintiff Holmes states that she and the other
plaintiffs chose to file “directly to the EEOC” after the employer, in M arch 2003,
                                                                        (continued...)

                                         -12-
she herself perceived the incident to be so severe as to be indicative of sexual

harassment, but more importantly, absent a complaint from the employee, there

was no notice to the employer that would have enabled it to take any kind of

remedial action. As this Court stated in Adler v. Wal-M art Stores, Inc., 144 F.3d

664, 673 (10th Cir. 1998), for an employer to have liability for failing to remedy a

sexually hostile work environment, the plaintiff must establish that the employer

had actual or constructive knowledge of the hostile work environment but did not

adequately respond to notice of the harassment, citing to Harrison v. Eddy

Potash, Inc., 112 F.3d 1437, 1444 (10th Cir. 1997). Here, there is no indication

that the employer had timely notice of the M ay 2002 incident that would have

required a reasonable response.

      C.     Plaintiff G iacoletto

      Plaintiff Giacoletto alleged four acts of harassment, three of which

occurred in 2001, but only one of which occurred after M ay 26, 2002 during her

filing period. She asserted that in November 2002, after Johnson’s retirement but

apparently during one of his visits to the Cedar City office where Plaintiff

Giacoletto was working with Johnson’s wife, a back rub to which she consented

turned into “inappropriate physical contact” (Order at 8). The district court, again

      5
       (...continued)
responded inadequately to Plaintiff Stephens’ complaint, further suggesting to the
Court that no complaint was made to the employer about the June 2002 incident
until M arch 2003. Id. at 3.

                                         -13-
relying on Duncan, found this one incident insufficient to state a claim for hostile

work environment because it occurred 16 months after the previous alleged acts

of 2001, and was so attenuated in time and circumstance from the 2001 acts that it

“cannot be said to be part of the same hostile work environment” (O rder at 8).

The district court further noted that between the time of Plaintiff Giacoletto’s

allegations regarding incidents in 2001, and the one November 2002 incident that

occurred within the filing period, Johnson had been disciplined by the employer

as a result of a Department of Human Resources investigation, and had retired

from the DW S, so that a jury could not rationally conclude that the November

2002 incident is part of the same alleged hostile w ork environment that allegedly

existed before the investigation. Standing alone, the one incident in November

was not enough to support a claim of hostile work environment (Order at 8).

      In considering whether the district court properly applied the Duncan

analysis, this panel notes that unlike the situation involving Plaintiff Holmes, the

incident of November 2002 involving Plaintiff Giacoletto occurred in the office

where she still worked. On the other hand, as the trial court pointed out, unlike

the situation involving Plaintiff Holmes, Johnson was no longer a supervisor or

employee of the defendant at the time of the November 2002 incident. This is not

to say that an employer is not obligated to protect employees from sexual

harassment initiated by outsiders, customers, nonemployees or visitors to



                                         -14-
workplace premises, for they surely are as the Tenth Circuit held in Lockhard v.

Pizza Hut, Inc., 162 F.3d 1062, 1073 (10th Cir. 1998) (“EEOC regulations

specifically provide that an employer may also be responsible for the acts

of non-employees, with respect to sexual harassment of employees in the

workplace, where the employer (or its agents or supervisory employees) knows or

should have known of the conduct and fails to take immediate and appropriate

corrective action.”) (internal citation omitted). But even assuming such liability

exists, the question remains w hether the workplace is “permeated with

discriminatory intimidation, ridicule, and insult.” Id. at 1073 citing Harris v.

Forklift Sys. Inc., 510 U.S. 17, 21 (1993) (quotations marks deleted).

      Here, given the long passage of time from the prior reported conduct of

Johnson, the fact that he had been reprimanded by the employer during the

interim, the fact that he was no longer in a supervisory capacity or even a fellow

employee, collectively provide support justifying the trial court’s conclusion that

under the Duncan analysis this incident in November 2002 cannot be found to be

part of the same hostile environment that allegedly existed in 2001.

      This panel also agrees w ith the district court that standing alone this

incident of November 2002 does not create a sexually hostile work environment.

As with the incident involving Plaintiff Holmes, it does not appear that Plaintiff

Giacoletto reported this incident to the employer close to the time it happened,



                                         -15-
but rather waited until M arch 2003 to provide the employer with notice of the

November 2002 incident and then only when she filed her EEOC charge. 6 This

again raises a question as to the severity of the incident as perceived by the

employee, particularly given her admission that she initiated the physical contact

by requesting a back rub. And, significantly, absent an employee report, the

employer was not put on notice of the alleged conduct so as to enable it to take

any kind of remedial measure.

      Thus, as is the case with Plaintiff Holmes, this Court agrees that the district

court properly found that the one incident that allegedly occurred in November

2002 was not sufficiently severe and pervasive to constitute an environment of

sexual hostility with respect to Plaintiff Giacoletto, nor can the incident be linked

with prior incidents to make out a sexually hostile work environment.

      D.     Plaintiff Stephens

      As noted above, Plaintiff Stephens’ separate complaint alleged a claim for

quid pro quo sexual harassment relating to the denial of a promotion (First Cause



      6
         Plaintiff Giacoletto’s affidavit submitted in opposition to defendant’s
motion for summary judgment describes the November 2002 incident as having
been initiated by her, and although claiming it amounted to conduct “based on
sex,” does not state she reported it to the employer (Conf. App. Vol. 5 at 87).
Elsewhere in her affidavit, Plaintiff Giacoletto states that she and the other
plaintiffs chose to file “directly to the EEOC” after the employer, in M arch 2003,
responded inadequately to Plaintiff Stephens’ complaint, further suggesting that
no complaint was made to the employer over the November 2002 incident until
M arch 2003. Id. at 83.

                                         -16-
of Action), which the trial court dismissed, but which order is not being

challenged on appeal.

      Plaintiff Stephens’ separate claim of hostile w ork environment relates to

two acts which occurred after June 6, 2002 during her filing period, namely the

denial of a promotion in November 2002 and an incident in M arch 2003, when

Johnson allegedly followed her from the DW S office to the local post office in a

manner that she describes as “stalking” and grabbed her “frightening her to

death.” (Pl. Stephens’ O pp’n to Summ. J., App. Vol. 3 at 167).

      The trial court found that these two acts w ere insufficient to make out a

hostile work environment claim. As with Plaintiffs Holmes and Giacoletto, the

trial court found these acts too “attenuated” under the Duncan analysis from the

earlier acts of harassment because Johnson had nothing to do with the denial of

Plaintiff Stephens’ promotion in November 2002 (having retired) and being

followed to the post office is not connected because Johnson was “not constantly

present in the [Cedar City] office” at the time (O rder at 11).

      On appeal, Plaintiff Stephens’ separate appellate brief makes an

independent argument for reversal. Before reaching the argument that the

incident at the post office is alone sufficient to support a claim for sexually

hostile work environment, she instead argues for reversal on the ground she had

no notice that the trial court was contemplating summary judgment on the issue of



                                          -17-
the timeliness of her EEOC charge, at least as to her hostile environment claim.

She claims she was unfairly prejudiced when it was raised at the oral argument on

February 16, 2005 before the trial court (Stephens Appellate Br. at 3, 11-15). She

claims the district court erroneously raised the issue sua sponte, and had she had

notice, she would have pointed to other acts of harassment that occurred during

the filing period. Id.

             1.      A nalysis of sua sponte grant of sum m ary judgment

      This court first addresses Plaintiff Stephens argument that the trial court

erred in granting summary judgment on this ground, for if it did, this court need

not reach her other arguments.

      W hile Plaintiff Stephens asserts in her appellate brief that there was other

evidence of harassment during her filing period which she would have offered had

she had notice of this issue at the hearing, and cites to deposition testimony which

she claims is to that effect (see id. at 5, ¶ 7), the deposition excerpts attached to

her brief at Addendum D contain only general statements of harassment without

specific dates. M oreover, given the fact that her filing period began June 10,

2002, and Johnson left employment with defendant on June 28, 2002, there is no

basis from which to infer that these undated events referred to in her deposition

occurred during the filing period after June 10, 2002.




                                          -18-
       In response to this independent argument, the defendant asserts that a

district court has the power to enter summary judgment sua sponte, provided that

the losing party was on notice that she had to come forward with all of her

evidence, citing to Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). Defendant

claims that the trial judge on the record at the hearing on defendant’s motion on

February 16, 2005 raised the issue of the timeliness of Plaintiff Stephens’ second

claim, and gave her an opportunity to come forward with evidence (Def.’s

Appellate Br. at 5, and 22-24, citing to transcript of hearing, App. Vol. 1 at 100-

01).

       W e note that the transcript of the February 16, 2005 hearing reveals that the

district judge listed the incidents mentioned in Plaintiff Stephens’ charge which

had occurred within the 300 days preceding the filing of the charge, and requested

Plaintiff Stephens’ counsel to state w hether there was anything else he wished to

offer. Counsel responded stating “there really is nothing I have to add to what the

court has stated.” Id. at 101. Defendant thus asserts that Plaintiff Stephens had

the opportunity to provide additional evidence but did not argue that additional

evidence was available in the summary judgment record as she now argues on

appeal (Def.’s Appellate Br. at 25).

       In First Am. Kickapoo Operations, L.L.C. v. M ultimedia Games, Inc., 412

F.3d 1166 (10th Cir. 2005), a case relied on by defendant here, this Court, quoting



                                         -19-
Celotex, reiterated that a sua sponte grant of summary judgment although not

encouraged, is permissible, provided that the losing party was put on notice to

com e forw ard w ith all its evidence. 412 F.3d at 1166, 1170 (10th Cir. 2005). A s

the panel noted, in that case the district court before ruling “invited the parties to

proffer any extrinsic evidence they thought relevant to this question.” Id.

However, the district court did so by written order of September 2, 2003, and not

on the record in open court, and appears to have issued its written order shortly

thereafter on September 6, 2003. Id. at 1169.

      This is not exactly what happened here. Yet, it is clear from the transcript

that Plaintiff Stephens’ counsel was given an opportunity to tender evidence, and

he could have cited to the deposition transcript then, as he now does in the

appellate brief. The same deposition excerpts were part of the record before the

trial court. See Ex. 1 to Stephens’ O pp’n to Def.’s M o. for Summ. J., Excerpts

from Stephens’ deposition, App. Vol. 3, 210-38. If counsel believed the

deposition provided evidence of post-June 10, 2002 harassing conduct by

Johnson, he had the opportunity to come forward with the evidence before the

district court ruled, but did not do so.

      In addition, defendant contends that Plaintiff Stephens was not prejudiced

by the lack of notice because she had no probative evidence to offer of post-June

2002 harassing conduct (Def.’s Br. at 29-35). In Ward v. State of Utah, this Court



                                           -20-
held that “[i]f a losing party was not prejudiced by the lack of notice, we will not

reverse simply because the grant of summary judgment came sua sponte.” 398

F.3d 1239, 1245-46 (10th Cir. 2005).

      The defendant’s appellate brief makes a persuasive argument that Plaintiff

Stephens’ deposition testimony, attached to the appellate brief and contained in

the record before the trial court even though not expressly cited to the trial judge,

is too vague to establish a pattern of severe and pervasive conduct required to

make out a hostile w ork environment claim. As noted above, this testimony is

completely devoid of dates to permit the court or jury to determine that the

described acts occurred during the filing period (Def’s Br. at 30-33). Having

review ed the deposition excerpts ourselves (contained in Addendum D to

Stephens Br.), this panel is unable to identify a specific date during the filing

period on which any described harassing act supposedly occurred.

      Thus, even if plaintiff’s counsel had tendered these deposition excerpts to

the trial court they would not have provided evidence of any specific harassing

act during the filing period. Thus, Plaintiff Stephens’ argument for reversal on

the ground that the trial court erred by a sua sponte entry of summary judgment

must be rejected.




                                          -21-
             2.    W hether Plaintiff Stephens brought forth sufficient
                   evidence to support her rem aining claim of a sexually
                   hostile environment

      The question remains whether the two incidents that occurred within the

filing period asserted by Plaintiff Stephens were sufficient to submit a claim to a

jury for a sexually hostile work environment in violation of Title VII. As noted,

the district court found that they were not, as they were too attenuated from

earlier alleged harassing conduct under the Duncan analysis to constitute a pattern

of harassment, and standing alone did not support such a claim (Order at 11).

      Here too, as in the situations involving Plaintiffs Holmes and Giacoletto,

the passage of time since the 2001 conduct, the intervening discipline of Johnson,

the fact that he was no longer a supervisor after June 2002, and the absence of

evidence that he played any role in the alleged denial of promotion to Plaintiff

Stephens in November 2002, all support the trial court’s conclusions that the pre-

filing period conduct of 2001 cannot be properly linked with the events Plaintiff

Stephens alleges to have occurred in N ovember 2002 and M arch 2003 to support

an inference of a sexually hostile work environment fostered by the employer.

      In addition, this panel agrees that the two incidents that did occur during

the filing period do not rise to the level of creating a hostile work environment.

First, as noted, even if Plaintiff Stephens was denied a promotion in November

2002, she has come forward with no evidence that the denial was in any way



                                        -22-
connected to conduct of Johnson, who by then had been gone from employment

by defendant for at least four or five months. Second, while the actions of

Johnson in allegedly stalking Plaintiff Stephens in M arch 2003, and in allegedly

grabbing her and frightening her may by themselves be considered severe, this

court notes, as did the district court, that such actions did not occur on the

premises of the employer, or otherwise in connection with her work, and did not

involve a fellow employee or supervisor. Plaintiff Stephens has cited no cases to

suggest that employers have a duty under Title VII to protect employees off the

work premises from the conduct of nonemployees, even if such conduct may be

found to be severe in its sexual overtones. The fact that Johnson may have

committed an assault or some other tort against Plaintiff Stephens off the w ork

premises does not automatically translate into a Title VII violation by her

employer.

      Third, this Court notes that Plaintiff Stephens, unlike her counterparts,

apparently did promptly report the M arch 2003 incident at the post office (see

App. Vol. 4 at 309). As the district court found, when Plaintiff Stephens reported

that she “felt harassed by M r. Johnson when he followed her from the DW S office

to the post office” the employer conducted an investigation and “barred” Johnson

from entering the Cedar City Employment Center and prohibited him from calling

it main telephone line” (Order at 2). By letter dated M arch 27, 2003, Plaintiff



                                          -23-
Stephens w as advised of the remedial measures imposed by defendant against

Johnson (see App. Vol. 2 at 305).

      In Adler v. Wal-M art Stores, Inc., supra, this Court further explained the

employer’s liability for allowing a sexually hostile w ork environment after it is

reported to the employer by the employee arises only if the employer fails to take

adequate remedial and preventative responses to any actually or constructively

known harassment. 144 F.3d at 673. A court may determine on summary

judgment whether an employer’s responses to claims of sexual harassment were

reasonable as a matter of law. Scarberry v. ExxonMobil Oil Corp., 328 F.3d 1255,

1257 (10th Cir. 2003).

      Although the district court did not expressly so find, it appears to this Court

that the actions of barring Johnson from the Cedar City office and prohibiting him

from calling the main line, where he might contact other employees, is an adequate

and reasonable response to the type of off-premises harassment allegedly suffered

by Plaintiff Stephens. Thus, alternative grounds exist to support the trial court’s

grant of summary judgment on Stephens’ claim, even if Johnson’s actions of

M arch 2003 alone w ere enough to support a claim for sexually hostile work

environment. Here, it appears the employer took reasonable and prompt measures

to address the conduct of the perpetrator given the circumstances under which the

conduct occurred.



                                         -24-
E.    T he L evanger Investigation

      The complaint filed by Plaintiff Stephens makes no allegations regarding the

investigation carried out by M r. Levanger, and therefore makes no claims that the

investigation itself w as sexually discriminatory in violation of Title VII (see App.

Vol. 1 at 36-45). The only averments regarding the Levanger investigation are

found in the complaint filed in Holmes, et al. The plaintiffs in that case

essentially alleged that in M arch 2003 they were interview ed off-site in Cedar City

by M r. Levanger of the defendant’s Human Resources Department (App. Vol. 1 at

20). They allege that they were interviewed without attorneys present, although

they had requested to bring attorneys, the interview s w ere recorded, and the results

of that investigation “have not been made known” to them, leaving them to

conclude that the interview was conducted at the behest of “Risk M anagement,”

was not for “their benefit” and was not conducted in good faith (id.). 7

      W hile the appellants’ brief now characterizes the conduct of M r. Levanger

as consisting of “harassing interviews” and including “reported intimidation and

threats” (Appellant’s Joint Br. at 6), no such allegations are found in plaintiffs’

com plaint. M oreover, as noted above, each of these three plaintiffs filed EEOC

charges in M arch or April 2003, on the dates set forth above. This panel has




      7
        As noted above, the results of the investigation, that is the barring of M r.
Johnson from the Cedar City office, were made known to Plaintiff Stephens.

                                         -25-
review ed the charges filed by each plaintiff, and the typewritten attachment to

Plaintiff Jackson’s charge, and finds no reference in them to any threatening,

intimidating or harassing conduct by M r. Levanger, or any mention whatsoever of

M r. Levanger or his investigation.

       Against this factual background, the district judge disposed of the claim

that the Levanger investigation constituted a hostile environment in a footnote

stating the allegations that plaintiff felt harassed by M r. Levanger are “wholly

separate from the Plaintiffs’ claim of a hostile work environment” and plaintiffs

had not provided facts to support the “broad assertions of harassment in this

respect.” (Order at 2 n.1). On appeal, plaintiffs argue that M r. Levanger’s alleged

conduct, although arguably “gender neutral” in that he may have acted in the same

manner as to any complainant, should have been found to be sexually

discriminatory in this case due to the “entire body of conduct” involving plaintiffs’

interactions with Johnson, citing to Chavez, 397 F.3d at 835-36 (Appellants’ Br. at

34).

       W hile the reasons for entering summary judgment on this aspect of these

three plaintiffs’ claims of a sexually hostile work environment perhaps could have

been spelled out by the district court in more detail, this Court nonetheless agrees

that summary judgment on these claims was correctly entered, without the

necessity of reaching the plaintiffs’ argument based on Chavez. It is fundamental



                                         -26-
law that a plaintiff may not assert a Title VII claim with respect to conduct not

first asserted in a discrimination charge filed with the EEOC. See e.g. Simms v.

Oklahoma ex rel. Dept. of M ental Health, 165 F.3d 1321, 1326 (10th Cir.), cert.

denied, 528 U.S. 815 (1999) and cases cited therein. None of the three plaintiffs

here filed a charge asserting that M r. Levanger’s conduct amounted to sexual

harassment. Accordingly, the trial court’s entry of summary judgment is correct.

                      V . D E FE N D A N T’S C R O SS-A PPE A L

      In light of the foregoing ruling on the district court’s summary judgment

order, the defendant’s cross-appeal of the discovery order is deemed moot.

                                V I. C O N C L U SIO N

      For all these reasons, the district court’s order granting summary judgment

as to the claims of all four appellants on their claims under Title VII is affirmed.




                                         -27-
