                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                               July 10, 2012
                                    PUBLISH                Elisabeth A. Shumaker
                                                               Clerk of Court
                        UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT


 ELIZABETH ANN BERTSCH,

        Plaintiff - Appellant,

 v.                                                   No. 11-4128

 OVERSTOCK.COM,

        Defendant - Appellee.

 --------------------

 EQUAL EMPLOYMENT
 OPPORTUNITY COMMISSION,

         Amicus Curiae.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF UTAH
                    (D.C. No. 2:10-CV-00037-DAK)


April Hollingsworth of Hollingsworth Law Office, L.L.C., Salt Lake City, Utah,
for Plaintiff - Appellant.

Rick Sutherland of Jones, Waldo, Holbrook & McDonough, P.C., Salt Lake City,
Utah, for Defendant - Appellee.

Christine Back, (P. David Lopez, General Counsel and Carolyn L. Wheeler,
Acting Associate General Counsel of U.S. Equal Employment Opportunity
Commission, Office of General Counsel, on the brief), Washington, D.C., for
Amicus Curiae.
Before KELLY, MURPHY, and HARTZ, Circuit Judges.


KELLY, Circuit Judge.


      Plaintiff-Appellant Elizabeth A. Bertsch appeals from the grant of summary

judgment in favor of her former employer, Defendant-Appellee Overstock.com,

on her hostile work environment and retaliation claims, and appeals the denial of

leave to amend to add a disparate-treatment claim, all under Title VII of the Civil

Rights Act, 42 U.S.C. §2000e-e17. We have jurisdiction under 28 U.S.C. § 1291

and affirm in part, reverse in part, and remand.



                                    Background

      In November 2002, Ms. Bertsch began work next to Dustin Latimer, a co-

worker supposedly “notorious” for viewing sexually explicit videos at work,

putting up a poster of a “scantily clad” woman in his cubicle, and saying things

like “this department would run better if the males were doing the job.” Aplt. Br.

9. She alleges that his misogynistic comments were “constant,” i.e., at least

weekly. Aplt. App. 442. Another female employee testified that the remarks

were “daily, and sometimes hourly.” Id. at 838. Ms. Bertsch also asserted that

Mr. Latimer engaged in demeaning conduct such as ridiculing her in meetings,

treating her like a “servant,” and refusing to look at her while they talked. Id. at

638, 361, 591.

                                        -2-
      She, by contrast, claims to have had a record of promotions, positive

evaluations, and no discipline—until February 18, 2004, when a flap with Mr.

Latimer took place. Aplt Br. at 8, 10. Mr. Latimer, apparently piqued by Ms.

Bertsch’s failure to issue a “purchase order” promptly enough, sent an email,

copying their supervisors and an outside vendor, which said: “Hmm. No

response. I guess we will just have to wait until Beth sees fit to send it.” Aplt.

App. 587. The next morning Ms. Bertsch replied to Mr. Latimer and the

supervisors: “[C]an we try to be a bit more professional about telling a vendor

why a PO number has not been given yet. I found the previous response

offensive.” Id. at 586. Overstock says this embarrassing exchange, on top of

existing frictions between the two—it seems they would go days without

speaking, though members of a small team of about six—prompted it to

investigate. A supervisor named Stormy Simon was also concerned because she

had personally brought the vendor to the company; because Ms. Bertsch had not

issued the purchase order in a timely way; and because Ms. Bertsch’s tensions

with other employees had in her view been a concern for some time. Id. 820-24.

      A few days later both Mr. Latimer and Ms. Bertsch received a written

disciplinary notice stating that they had been subject to complaints of

“contribut[ing] to a hostile work environment.” They were instructed to work

more cooperatively. The notices differed in that Ms. Bertsch was told to “treat all

co-workers fairly,” id. at 585, while Mr. Latimer was told to “[a]bstain from

                                         -3-
making derogatory remarks about sex or gender,” id. at 603. Overstock claims

that Ms. Bertsch’s co-workers did not substantiate her allegations against Mr.

Latimer but did report that she had contributed to a hostile work environment. Id.

at 633-34. Ms. Bertsch claims she “got along well” with everyone and that “there

is no documentation of any problems between her and any other coworkers.”

Aplt. Br. 13-14.

      Before this incident Ms. Bertsch was never subject to discipline, but a

supervisor did write in her 2003 annual review that she “needs to work on getting

along with her fellow employees,” Aplt. App. 584, and, in her 2004 review, that

she “needs to work on the team dynamic,” id. at 582. Mr. Latimer, for his part,

had apparently been warned in 2003 for “[f]ailure to work cooperatively with

others” and chewing tobacco, id. at 602, 604, and would be warned in 2005 for

profanity, id. at 605. Overstock says it considered the email kerfuffle a he-said-

she-said affair between difficult employees. Id. at 633-34. Ms. Bertsch made no

complaints about Mr. Latimer after their February discipline.

      The next day, on February 26, 2004, Ms. Bertsch emailed a series of

apologies to co-workers (including Mr. Latimer), which said things like, “Because

of a deeply humbling experience, I have learned that I am the problem.” Id. at

336. She claims these emails were a last-ditch effort to save an imperiled job she

needed to support her child. Id. at 484. Her notice also contained a “corrective

action plan,” which stated that “Beth contributes to a hostile work environment”

                                        -4-
and has “shown a pattern of not supporting co-worker business needs and she

needs to prioritize her tasks more effectively.” Id. at 585. She was allowed to

contest the discipline but instead wrote on the form: “I realize I have been

contributing to some departmental contention. I would like the opportunity to

personally apologize to those I have offended to help make amends.” Id. at 585.

      Subsequent events are controverted. Ms. Bertsch says that on the day

before she received her written notice, she was called in by a supervisor (she

can’t remember who) and told that “I was the problem and that I could either quit

or be sent to the warehouse.” Id. at 480. (The warehouse is an Overstock facility

some five miles away; it is not a proper office like “corporate,” where she spent

most of her time, but it does seem to have had desks and phones.) Supervisor

Brian Popelka denies this. Id. at 713-14. He says that transfer was merely a

solution proposed in order to separate colleagues facing a “breakdown of their

relationship”; he recalled that Ms. Bertsch already spent time at the warehouse,

since she, unlike Mr. Latimer, reviewed inventory. Id. at 708-09. Stormy Simon,

her other supervisor, recalls Ms. Bertsch working there “at least a day a week”

but also that reassignment was not “an option,” presented for Ms. Bertsch’s

consideration, but a “manager’s decision.” Id. at 826. Another controverted fact:

Ms. Bertsch says she was never actually sent, id. at 511; Overstock supervisors

recall that she was, id. at 710.

      In May 2004, Overstock received new complaints about Ms. Bertsch, this

                                        -5-
time from warehouse personnel, over a “bottleneck” she created and what a

supervisor called a needlessly “dramatic” email concerning mishandled book

inventory (“Oh my God,” she wrote, “is this the stuff from Random House that

was supposed to have been sent back ages ago??). Id. at 600-01; 716-18; 830.

Mr. Popelka recalled: “at corporate she had operational performance and bad

behavior, and when she got to the warehouse, she had bad behavior and now the

performance wasn’t there either. And Stormy and I felt this was not ever going to

resolve itself. You know, we just chose termination.” Id. at 718. Overstock fired

her on May 17, 2004. The termination form used language like “[r]esistant,”

“difficult,” “attitude has isolated her,” “productivity suffers,” “sarcastic,” “creates

disharmony,” and “insubordinate comments.” Id. at 606-07.

      Ms. Bertsch then brought her sexual harassment and retaliation claims to

the Utah Labor Commission, which ruled in her favor in November 2007. Id. at

616-627. As Overstock appealed, Ms. Bertsch got a right-to-sue letter from the

EEOC. She filed this suit in January 2010. Ms. Bertsch’s position is that she

worked in the face of Mr. Latimer’s sexual harassment, which Overstock knew

but ignored. When she complained, the company criticized her, threatened

reassignment, and eventually fired her. Overstock’s view is that she was a

difficult, high-maintenance employee who left the company with no choice but to

part ways.




                                         -6-
                                     Discussion

      We view the summary judgment evidence in the light most favorable to the

non-movant, applying the same standard as the district court; the non-movant

must come forward with significantly probative evidence demonstrating a genuine

issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249-50 (1986).

A.    Hostile Work Environment

      To establish that Mr. Latimer’s alleged misogyny and dislike of her created

a hostile work environment, Ms. Bertsch must present evidence that the

workplace was “permeated with discriminatory intimidation, ridicule, and insult,

that [was] sufficiently severe or pervasive to alter the conditions of [her]

employment and create an abusive working environment” and that she was

“targeted for harassment” because of her gender. Herrera v. Lufkin Indus., Inc.,

474 F.3d 675, 680 (10th Cir. 2007); 42 U.S.C. § 2000e-2. The company, as

opposed to the individual directly responsible for the misbehavior, is liable, on a

negligence theory, “if it knew or should have known about the conduct and failed

to stop it.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759 (1998).

      Overstock denies any such atmosphere but presses its main point—which

the district court found “dispositive,” Bertsch v. Overstock, No. 10-cv-37-DAK,

2011 WL 2117615, at *6 (D. Utah May 27, 2011)—that it took “prompt and

effective remedial action” by conducting an investigation into her complaints and

                                         -7-
by issuing Mr. Latimer a disciplinary notice. Aplee. Br. 16. The question at the

summary judgment stage is whether her allegations and the record, viewed

favorably to her, could allow a jury to find in her favor. Morris v. City of Colo.

Springs, 666 F.3d 654, 660 (10th Cir. 2012).

      Title VII’s prohibition on sexual harassment operates to protect employees

from gender-related misconduct that disrupts job performance. A line must be

drawn between actionable conduct and conduct that is merely insensitive,

tasteless, or vulgar. Title VII’s mandate is not to ensure workplace harmony or

create a finishing school. A hostile work environment requires conduct so

“severe” or “pervasive” that the very terms of one’s employment are altered.

      We view the facts in Ms. Bertsch’s favor, and while none of the summary

judgment evidence may meet the severity threshold, there is a genuine issue of

material fact whether the conduct was pervasive enough to find in her favor. Yet

her claim still must be dismissed, because Overstock’s prompt remedial action

precludes employer liability. An “employer’s liability for allowing a sexually

hostile work 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.” Holmes v. Utah,

Dep’t. of Workforce Servs., 483 F.3d 1057, 1069 (10th Cir. 2007).

      Ms. Bertsch says she complained about Mr. Latimer’s poster; so did others,


                                        -8-
and he was ordered to remove it. Aplt. App. 421. In February 2004, after the

email incident, she complained about his coarse remarks and within days he

received a written warning to “[a]bstain from making derogatory remarks about

sex or gender.” Id. at 603. This is the extent of her formal complaints and

Overstock’s corrective action. Ms. Bertsch calls Overstock’s efforts a “sham,”

Aplt. Br. 39-40, relying on Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1242

(10th Cir. 1999), but her case is a far cry from the facts there, which involved

much more egregious harassment and yet the employer, after investigating,

concluded that “no harassment had taken place.”

      Ms. Bertsch also faults Overstock for not “following up” to see if the

problem had disappeared, Aplt. Br. 40, yet she does not point to anything specific

or concrete to show that Mr. Latimer persisted. She observes that there is no

evidence that Mr. Latimer didn’t stop. Aplt. App. 867. But if she wished to

claim that harassment continued, it was her burden to produce significantly

probative evidence of it; to defeat summary judgment on this properly supported

employer defense, she has the burden of producing contrary evidence. Otherwise

a “stoppage of the harassment by the disciplined perpetrator evidences

effectiveness.” Adler v. Wal-Mart Stores, 144 F.3d 664, 676 (10th Cir. 1998).

B.    Retaliation

      Rarely will a plaintiff have direct evidence of a retaliatory motive; most


                                         -9-
plaintiffs attempt an “indirect,” burden-shifting case. Twigg v. Hawker Beechcraft

Corp., 659 F.3d 987, 999-1000 & fn. 8 (10th Cir. 2011). A prima facie retaliation

case is made if the plaintiff shows that she engaged in protected opposition to

discrimination, and, as a result, suffered materially adverse action, i.e., action

sufficient to “dissuade” a reasonable worker from making her complaint. Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); 42 U.S.C. § 2000e-3(a).

An employer generally offers a legitimate, non-retaliatory reason for its decision.

Twigg, 659 F.3d at 998. The plaintiff must then show that the employer’s reason

was a mere pretext for retaliation. Id. at 988-99.

      The district court erred in relying on a pre-Burlington Northern case, Haynes

v. Level 3 Communications, 456 F.3d 1215 (10th Cir. 2006), for the proposition that

the disciplinary action taken against Ms. Bertsch was materially adverse only if it

actually effected a significant change in her employment status, rather than

Burlington Northern’s rule of possible dissuasion of an employee from making or

supporting a charge of discrimination. Second, it erred in refusing to consider

pretext in determining there was no evidence of a causal connection between her

complaints about Latimer's conduct and her termination, contrary to Proctor v.

United Pacel Service, 502 F.3d 1200, 1209 (10th Cir. 2007).

      Ms. Bertsch claims to have been under the impression in February 2004 that

her allegations of harassment, not the email incident, instigated Overstock’s

investigation into her and Mr. Latimer. Aplt. App. 74, 475. As she sees it, she

                                       - 10 -
complained of mistreatment, then ten days later was “shocked” to find herself

“singled out” for hostility, threatened with reassignment, and fired some three

months after that. Id. at 217; Aplt. Br. 46. Overstock maintains that her attitude and

poor performance (the email exchange being “one instance that happened to be

caught on paper”) tell us all we need to know about her termination. Aplt. App. 316,

361.

       The problem with summary judgment here is that important facts remain in

dispute.   Did Ms. Bertsch actually inform her supervisors of Mr. Latimer’s

harassment, as she suggests, or did she say nothing of the sort, as Overstock claims?

Compare id. at 468, 588, 613 (Bertsch) with 797-98 (Simon) and 747 (Popelka).

Could a jury wonder why Ms. Bertsch was disciplined over the email exchange, even

though Mr. Latimer was the one who in fact publicized their dispute? Was the threat

of reassignment to the warehouse a sort of demotion, as she felt, or a sensible

solution to the problem of co-worker squabbles, as Overstock claims? And was she

sent or not? If not, what does that say about the claim by those who fired her that

she caused tensions once she “got” there?

       Poor performance, to be sure, is the quintessential legitimate, non-

discriminatory reason for termination, but summary judgment, reviewed de novo,

can be affirmed only if Overstock shows that there is no genuine dispute of material

fact; a dispute exists if the “evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Without hinting at

                                        - 11 -
the strength of Ms. Bertsch’s claim, and drawing reasonable inferences in her favor,

a jury could, on this evidence, find in her favor on this claim. That she did not

prevail on her hostile work environment claim is no bar; she need only have a

reasonable good-faith belief she is opposing discrimination. Crumpacker v. Kan.

Dep’t. of Human Resources, 338 F.3d 1163, 1171-72 (10th Cir. 2003). Of course,

the evidence at trial may differ, and a trial no doubt will explore Ms. Bertsch’s

falling on the sword when confronted and later recanting.

C.    Disparate Treatment

      The court denied Ms. Bertsch’s request—made in her motion opposing

summary judgment, Aplt. App. 109—to add a claim of gender-based disparate

treatment. “Latimer was written up several times for the same offense for which

Bertsch was terminated,” she says, “and yet he was not terminated.” Aplt. Br. 43.

They worked in the same department under a common supervisor. And she says she

only learned of his record of write-ups when she got the documents from Overstock

during discovery. Aplt. App. 871.

      Even though Ms. Bertsch has always contested her termination, she has never

done so, until this motion, under a theory of disparate treatment. This claim is thus

a new one subject to our jurisprudence on administrative exhaustion. “A plaintiff

must generally exhaust his or her administrative remedies prior to pursing a Title VII

claim in federal court.” Simms v. Oklahoma ex rel. Dept. of Mental Health and

Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir. 1999). This court has

                                        - 12 -
held the exhaustion requirement is a jurisdictional prerequisite to suit under Title

VII. Shikles v. Sprint/United Management Co., 426 F.3d 1304, 1317 (10th Cir.

2005). Therefore, a plaintiff normally may not bring a Title VII action based upon

claims that were not part of a timely-filed EEOC charge for which the plaintiff has

received a right-to-sue letter.” Simms, 165 F.3d at 1326. Ms. Bertsch must timely

file her disparate treatment claim with the EEOC or Utah Labor Commission and

receive a right to sue letter before this court has jurisdiction to hear her claim.

Because this court has no jurisdiction in the first place, amendment through relation

back does not apply.

      The district court’s judgment dismissing the hostile work environment sexual

harassment claim and denying leave to amend is affirmed; it is reversed insofar as

it dismisses the retaliation claim.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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