                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         DEC 23 1999
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


TINA JESSEN,

          Plaintiff-Appellant,

v.
                                                        No. 98-8069
                                                   (District of Wyoming)
BRUCE BABBITT, Secretary, United
                                                  (D.C. No. 97-CV-289-J)
States Department of the Interior;
BUREAU OF LAND
MANAGEMENT,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before EBEL, McWILLIAMS, and MURPHY, Circuit Judges.



I. INTRODUCTION

      Tina Jessen sued her employer, the Bureau of Land Management (“BLM”),

claiming co-worker and defendant Wally Stiles created a sexually hostile work

environment which the BLM failed to remedy in violation of Title VII of the 1964


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Civil Rights Act. The district court granted the BLM motion for summary

judgment on two alternative grounds: (1) Jessen did not produce sufficient

evidence upon which a reasonable jury could find the existence of a hostile work

environment under Title VII; and (2) she failed to demonstrate that the BLM

knew or should have known of Stiles’ alleged harassment, thus absolving her

employer of Title VII liability. Jessen appeals the district court’s grant of

summary judgment, asserting that these two conclusions were error. This court

exercises jurisdiction pursuant to 28 U.S.C. § 1291, reverses the grant of

summary judgment, and remands for further proceedings.



II. BACKGROUND 1

      From 1993 to August of 1995, Tina Jessen was employed by the Wyoming

State Office of the BLM as a Supervisory Land Records Specialist. Her duties

included collecting and converting certain databases. Wally Stiles worked as the

BLM’s State Data Administrator and was in charge of quality assurance over

databases. Stiles did not, however, function as Jessen’s supervisor.

      In the Spring of 1994, Jessen advised Stiles and management not to certify

the Legal Land Description Database (“the database”), because she believed it


      1
         The following background discussion reflects this court’s view of the
facts in a light most favorable to Jessen, the party opposing summary judgment.
See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996).

                                          -2-
was substantially inaccurate. Contrary to Jessen’s recommendation, Stiles

certified the database. The Washington D.C. Office of the BLM then rejected the

certification of the database due to the numerous inaccuracies it contained. Stiles

responded by blaming Jessen, claiming she never informed him of the errors.

Additionally, Stiles began to physically intimidate Jessen and engage in other

hostile conduct which Jessen alleges was motivated by his animus toward her as a

woman.

      On June 23, 1995, after consulting a BLM personnel manager, Jessen filed

an informal grievance documenting numerous work related complaints and

requesting reassignment to a position of equal grade and salary which would not

require any contact with Stiles. The BLM, however, did not grant Jessen’s

reassignment request. Stiles’ harassment only escalated after she filed that

grievance.

      In August of 1995, as part of a state-wide reorganization of the BLM,

Jessen became a land records specialist, which required her continued interaction

with Stiles. In September, she filed a formal grievance restating her prior

complaints and again requesting a job reassignment involving no contact with

Stiles. In January of 1996, the BLM notified Jessen that she would be reassigned

to a computer assistant position in the Division of Minerals and Lands. In part

because that job also entailed contact with Stiles, Jessen filed another informal


                                         -3-
grievance objecting to the reassignment. After the BLM denied her objection,

Jessen filed a formal grievance in March of 1996. Nonetheless, the BLM

transferred Jessen into the new position in March. Finally, in November of 1996,

Jessen filed an EEO complaint alleging sexual harassment by Stiles.

      On December 5, 1997, in the United States District Court for the District of

Wyoming, Jessen sued Bruce Babbit, the United States Department of the Interior,

and the BLM (collectively “the BLM”), and Stiles individually for violating Title

VII of the Civil Rights Act of 1964. The BLM then filed a motion for summary

judgment, which the district court subsequently granted. Jessen now appeals the

district court’s order granting summary judgment in favor of the BLM.



III. ANALYSIS

      This court reviews de novo a district court’s grant of summary judgment,

applying the same legal standard utilized by the district court. See Charter

Canyon Treatment Ctr. v. Pool Co., 153 F.3d 1132, 1135 (10th Cir. 1998).

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In applying this

standard, this court views the evidence and draws reasonable inferences


                                         -4-
therefrom in a light most favorable to the non-moving party. See Kaul v.

Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996).



      A. The Existence of a Hostile Work Environment

      Under Title VII of the Civil Rights Act of 1964, it is “an unlawful

employment practice for an employer . . . to discriminate against any individual

with respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e-2(a)(1). In Meritor Savings Bank, FSB v. Vinson, the United

States Supreme Court held that “a plaintiff may establish a violation of Title VII

by proving that discrimination based on sex has created a hostile or abusive work

environment.” 477 U.S. 57, 66 (1986). The Court then stated that for a hostile

work environment claim to be actionable, the sexual harassment “must be

sufficiently severe or pervasive to alter the conditions of [the victim’s]

employment and create an abusive working environment.” Id. at 67 (quotation

omitted).

      Later, in Harris v. Forklift Systems, Inc., the Court established a two-

element test which a plaintiff must satisfy to demonstrate that the harassment was

sufficiently severe or pervasive to alter the conditions of employment and create

a hostile environment: (1) the harassing conduct must be “severe or pervasive


                                          -5-
enough to create an objectively hostile or abusive work environment–an

environment that a reasonable person would find hostile or abusive;” and (2) the

plaintiff must “subjectively perceive the environment to be abusive.” 510 U.S.

17, 21 (1993). Furthermore, the Court instructed that in analyzing a claim under

these two elements, courts must look at all relevant circumstances, including “the

frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.” Id. at 23.

Therefore, to survive the BLM summary judgment motion on this issue, Jessen

was required to submit sufficient admissible evidence upon which a reasonable

jury could find that Stiles had created both an objectively and subjectively

sexually hostile work environment. See Davis v. United States Postal Serv., 142

F.3d 1334, 1341 (10th Cir. 1998). This court has noted “that the severity and

pervasiveness evaluation is particularly unsuited for summary judgment because

it is quintessentially a question of fact.” O’Shea v. Yellow Technology Services,

Inc., 185 F.3d 1093, 1098 (10th Cir. 1999) (quotations omitted).

      In first analyzing the objective element, this court’s review of the

admissible evidence presented to the district court at the summary judgment stage

leads to the conclusion that a reasonable jury could find that Stiles had created a

sexually hostile work environment. According to Jessen’s deposition and


                                         -6-
affidavit, Stiles routinely physically intimidated Jessen by blocking her path as

she attempted to walk down hallways, through doors, in and out of elevators, and

out of her cubicle, and by directing hostile facial expressions and body language

toward Jessen. See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir.

1987) (noting that “‘if a supervisor consistently uses physical force toward an

employee because of that employee’s sex, the use of such force may, if pervasive

enough, form an illegal condition of employment.’” (quoting McKinney v. Dole,

765 F.2d 1129, 1138-39 (D.C. Cir. 1985) (quotations omitted)). Although Stiles’

physical intimidation of Jessen may not appear on its face to be related to his

attitudes about gender or sex, Jessen presented sufficient other evidence of

Stiles’ animus toward women to raise the reasonable inference that his physical

intimidation of her was motivated by gender-based hostility. See id.; O’Shea,

185 F.3d at 1097 (“Facially neutral abusive conduct can support a finding of

gender animus sufficient to sustain a hostile work environment claim when that

conduct is viewed in the context of other, overtly gender-discriminatory

conduct.”). Jessen’s affidavit relates an incident in which Stiles stood at a desk

near Jessen’s and in a deliberately loud voice described how he used to look up a

teacher’s dress and down her blouse. Furthermore, Jessen testified in her

deposition that Stiles, in direct conversation with her, referred to co-workers




                                         -7-
Phyllis Stone as a “stupid bitch,” and to Nancy Hite as “a dumb bitch,” and “a

stupid fucking cunt.”

      Additionally, Jessen may utilize evidence of Stiles’ conduct toward other

women to demonstrate his discriminatory intent. See Spulak v. K Mart Corp.,

894 F.2d 1150, 1156 (10th Cir. 1990) (holding that testimony by other employees

about the defendant’s mistreatment of them based on age was relevant to the

issue of discriminatory intent in a Title VII age discrimination case); Heyne v.

Caruso, 69 F.3d 1475, 1480 (9th Cir. 1995) (holding that evidence of the

defendant employer’s harassment of other women is admissible in a sex

discrimination case because such evidence bears on the defendant’s

discriminatory intent). Affiant Nancy Hite stated that in August of 1995 she

heard Stiles call Jessen “stupid fucking cunt,” “dumb fucking bitch,” and “stupid

bitch.” Hite further stated that she too experienced Stiles’ physically intimidating

and sexually offensive behavior, such as his pushing up against and groping her

body and blocking her path. Three other female co-workers also submitted

affidavits which provide evidence of Stiles’ animosity toward women: Sue

Moberly termed Stiles’ behavior toward women as “abrasive,” “hot-tempered,”

“intimidating,” “impliedly violent,” and different than his treatment of men;

Diane O’Meara stated that Stiles “suggested I was a ‘lesbian’ because of my

interest in outdoor sports” and that “his conduct was specifically directed towards


                                         -8-
women;” and Sherry Latham described observing Stiles’ “hostile and intimidating

conduct.” The totality of this evidence suggests that Stiles harbors an intense

hostility toward women such that a reasonable jury could infer his physical

intimidation of Jessen was motivated by his animus toward her as a woman.

      Moreover, in determining whether an objectively hostile work environment

existed, this court may consider any admissible evidence of the above-described

conduct directed toward other women, if Jessen was aware of that conduct. See

Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 782 (10th Cir.

1995); Creamer v. Laidlaw Transit, Inc., 86 F.3d 167, 171 (10th Cir. 1996).

“[O]ne of the critical inquiries in a hostile environment claim must be the

environment. Evidence of a general work atmosphere therefore–as well as

evidence of specific hostility directed toward the plaintiff–is an important factor

in evaluating the claim.” Hicks, 833 F.2d at 1415. According to Jessen’s

affidavit and deposition, she personally observed Stiles harass other female

workers. 2


      2
          Jessen also asserts that she learned of further opprobrious conduct and
comments exhibited and made by Stiles when co-workers told her about this
behavior. The BLM contends that such evidence is inadmissible hearsay. Indeed,
“[i]t is well settled in this circuit that we can consider only admissible evidence in
reviewing an order granting summary judgment.” Gross v. Burgraff Constr. Co.,
53 F.3d 1531, 1541 (10th Cir. 1995). This court need not rely on this further
evidence, however, to conclude that Jessen created a material issue of fact as to
whether a hostile work environment existed. Therefore, we decline to determine
the admissibility of this or any other evidence proffered by either party but not

                                         -9-
      Jessen provided further evidence of an objectively hostile work

environment when she testified that the BLM personnel manager Gordon

Schaeffer acknowledged to her that Stiles treated her in a more hostile manner

because she is a woman. 3 Finally, the negative impact of Stiles’ behavior on

some of these women’s work performance further evidences the severity of the

hostile work environment: Hite alleged that she sought Workers’ Compensation

benefits for stress and took disability retirement due to Stiles’ treatment of her;

O’Meara stated, “Substantially as a result of Wally’s conduct I decided to retire

from the BLM when I was eligible.” See Harris, 510 U.S. at 23 (listing as a

relevant factor whether harassing conduct unreasonably interfered with work

performance). In sum, evidence which Jessen presented of Stiles’ ongoing

physical intimidation of her, his description of ogling a female teacher, his

references to women in gender-based, derogatory terms, his physically

intimidating and sexually offensive conduct toward other female employees, the

detrimental impact which this behavior had on the women, and management’s

acknowledgment of this behavior creates a genuine issue of material fact as to




referenced in this opinion. Those decisions are better left to the trial court on
remand.
      3
         Schaeffer’s statement to Jessen would not constitute hearsay because it
qualifies as an admission by a party opponent pursuant to Fed. R. Evid.
801(d)(2)(D).

                                         -10-
whether a reasonable person would find such a work environment sexually

hostile.

      Under the subjective element, Jessen also presented sufficient evidence for

a fact finder to conclude that she personally felt Stiles had sexually harassed her

by creating a hostile work environment. The Supreme Court has held that to

prevail on this element, a plaintiff need not demonstrate psychological injury.

See id. at 22. Nonetheless, Jessen stated in her affidavit that Stiles’ behavior

“upset [her] mentally, emotionally and physically on a daily basis” and that she

sought work related benefits and medical and psychological care due to Stiles’

harassment. Furthermore, this court has held that the subjective element “does

not require that [the plaintiff] quit or want to quit” her job. Davis, 142 F.3d at

1341. Jessen instead requested a transfer to a job assignment which would not

involve any contact with Stiles, though the BLM did not honor that request.

Additionally, her complaining about Stiles’ behavior to the personnel manager

and subsequent filing of grievances further evidences that she subjectively

perceived the work environment as sexually abusive. Thus, based on this

evidence, a reasonable jury could find that Jessen felt subjected to a hostile work

environment because of her sex.

      In opposing the BLM’s summary judgment motion, Jessen presented

sufficient admissible evidence upon which a rational jury could find the existence


                                         -11-
of both an objectively and subjectively hostile work environment because of sex.

Therefore, because a genuine issue of material fact exists regarding both of these

elements, the district court erred in granting summary judgment in favor of the

BLM on this issue.



      B. Employer Liability

      Under Title VII, an employer may be held liable for hostile work

environment sexual harassment committed by one employee against another if the

employer negligently or recklessly failed to respond to the harassment. See

Hirschfeld v. New Mexico Corrections Dep’t, 916 F.2d 572, 577 (10th Cir. 1990).

“This liability attaches when a plaintiff establishes that an employer had actual or

constructive notice of the hostile work environment and failed to respond

adequately to that notice.” Davis, 142 F.3d at 1342. In granting summary

judgment in favor of the BLM, the district court concluded that the BLM could

not be held liable even if a hostile work environment existed because the BLM

lacked notice that any such harassment was occurring. Jessen contends that this

conclusion was erroneous. 4


      4
         The district court sua sponte raised this basis for granting summary
judgment in its summary judgment order. The BLM’s motion for summary
judgment argued only that the undisputed facts failed to demonstrate the existence
of a sexually hostile work environment but never discussed employer liability.
The district court in its summary judgment order and both parties in their briefs

                                        -12-
      For purposes of Title VII, an employer is deemed to be on notice of a

hostile work environment if management level employees know about the alleged

harassment. See Hirschfeld, 916 F.2d at 577. In asserting that it never had

notice of the alleged harassment, the BLM focuses on the various informal and

formal grievances which Jessen filed. The BLM correctly points out that none of

these grievances explicitly or implicitly mentioned sexual harassment and none

even referenced the events discussed above which may prove the existence of a

sexually hostile work environment. Nonetheless, Jessen states in both her

affidavit and deposition that prior to drafting and filing her June 1995 informal

grievance she orally complained to the BLM personnel manager Gordon

Schaeffer about Stiles’ harassment. According to her testimony, Schaeffer even

agreed that Stiles would not treat Jessen in such a fashion if she were a man. 5

Jessen testified further that Schaeffer instructed her to omit from the informal

grievance any reference to sexual harassment or the events constituting the


on appeal do not address the second element in the employer liability test –
whether the BLM adequately responded to the harassment. Because that issue is
not raised on appeal and because Jessen never received an opportunity to respond
at the summary judgment stage to the question of employer liability, this court
will not consider whether the BLM adequately responded to the alleged
harassment.
      5
        Both Jessen’s statements to Schaeffer and his response to her are
admissible, because Jessen is not offering these statements to prove the truth of
the matter asserted, but merely to show that the statements were made, thus
demonstrating notice. See Fed. R. Evid. 801(c); Starr v. Pearle Vision, Inc., 54
F.3d 1548, 1555 (10th Cir. 1995).

                                         -13-
alleged harassment. Additionally, Jessen presented evidence that she also

complained about Stiles’ behavior to supervisors Jerry Jessen and Tom Enright

and they too acknowledged the sexually discriminatory nature of Stiles’ conduct.

This testimony creates a material issue of fact whether the BLM was on actual

notice of the alleged harassment. 6 See EEOC v. Hacienda Hotel, 881 F.2d 1504,

1516 (9th Cir. 1989) (concluding that employer can be held liable for sexual

harassment committed by one employee against another when the general

manager of the employer had actual knowledge of the harassment because the

victim had complained about it to him); Hall v. Gus Constr. Co., 842 F.2d 1010,

1016 (8th Cir. 1988) (holding employer liable because construction foreman had

actual knowledge of sexual harassment of female employees due to their

complaints to him and his observing some incidents of harassment). Therefore,

the district court erred in granting summary judgment to the BLM on the grounds

that it lacked notice of Stiles’ alleged harassment.




      6
         Jessen further asserts that the BLM was on notice of the alleged
harassment pursuant to Restatement (Second) of Agency § 219(2)(d). See
Harrison v. Eddy Potash, 112 F.3d 1437, 1450 (10th Cir. 1997) (holding that
under section 219(2)(d) an employer may be liable if the harassing supervisor
“has actual or apparent authority to control the victim’s working environment, and
is aided in harassing the victim by that authority”). Because this court concludes
that a material issue of fact exists regarding the question of actual notice, we need
not address this additional notice argument.

                                        -14-
IV. CONCLUSION

      In opposition to the BLM’s motion for summary judgment, Jessen

presented sufficient admissible evidence to create genuine issues of material fact

whether a sexually hostile work environment existed and whether the BLM had

notice of the alleged harassment. This court therefore REVERSES the grant of

summary judgment and REMANDS to the United States District Court for the

District of Wyoming for further proceedings consistent with this opinion.



                                      ENTERED FOR THE COURT:



                                      Michael R. Murphy
                                      Circuit Judge




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