                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            FEB 20 2002
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    CARRIE BATEMAN,

                Plaintiff-Appellant,

    v.                                                   No. 01-6136
                                                   (D.C. No. 00-CIV-1062-C)
    UNITED PARCEL SERVICE, INC.,                         (W.D. Okla.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT            *




Before MURPHY , McKAY , and BALDOCK , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Plaintiff filed a complaint against her employer, United Parcel Service, Inc.

(UPS), alleging harassment based on her sex and gender and the creation of a



*
      This order and judgment is not binding precedent, except under the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.
hostile work environment, all in violation of 42 U.S.C. § 2000e through

§ 2000e-17 (Title VII). She alleged that the incidents forming the basis of the

action occurred between August and September of 1999 and were caused

primarily by her then-supervisor Marc Cortez. Plaintiff alleged she was treated

more harshly than the male UPS drivers because of her gender.

      Following discovery and in particular the taking of plaintiff’s deposition,

UPS moved for summary judgment for lack of any admissible evidence to support

either a gender discrimination or hostile environment claim. Plaintiff replied,

challenging defendant’s undisputed facts and offering her own, a number of

which UPS challenged as incorrect, irrelevant, and/or inadmissible. The district

court granted summary judgment for UPS, framing plaintiff’s allegations as

follows:

      Plaintiff filed this action alleging violation of 42 U.S.C. § 2003,
      et seq. (“Title VII”). According to Plaintiff, her employer treated
      her differently because of her gender. Plaintiff alleges that her
      supervisor sexually harassed her and subjected her to a hostile work
      environment. Plaintiff argues Defendant’s decision to terminate her
      for violations of company policy is pretextual. Defendant denies
      Plaintiff’s allegations and asserts she was treated the same as other
      employees. Defendant denies Plaintiff’s claim of pretext and argues
      she was terminated for legitimate, nondiscriminatory reasons.
      Defendant brought the present motion, alleging there are no disputed
      material facts regarding Plaintiff’s claims and it is entitled to
      judgment as a matter of law.

Aplt. App. at 273.



                                        -2-
         At the outset, we note that the alleged sexual harassment from her

supervisor was not by Marc Cortez, her supervisor during the relevant time

period, Aplt. App. at 71, but by previous supervisors Brian Schmidt and Rob

Stone, both of whom apparently asked her out on dates in the late 1980s. These

events occurred more than 300 days prior to the filing of plaintiff’s EEOC

complaint. See Martin v. Nannie & The Newborns, Inc.       , 3 F.3d 1410, 1414

(10th Cir. 1993) (claims based on incidents occurring more than 300 days prior to

complaint are time barred). Further, the alleged incidents with Schmidt and Stone

were nowhere mentioned in either the EEOC complaint, Aplt. App. at 157, the

complaint filed in district court, Aplee. Supp. App. at 1-3, or in plaintiff’s

combined objection to defendant’s motion for summary judgment/cross motion for

summary judgment, Aplt. App. at 217-28. In fact, references to these incidents

with Schmidt and Stone did not surface until her statement of facts on appeal.

Aplt. Br. at 6. UPS listed plaintiff’s allegations of harassment by Schmidt and

Stone in its motion for summary judgment; however, this does not convert these

allegations into undisputed factual occurrences submitted by UPS.      See Aplt. Br.

at 21.

         Moreover, plaintiff’s attempt to portray Schmidt’s alleged harassment as

continuing is quite vague (“[Schmidt] has reappeared as my supervisor in various

areas and has just not really been that professional when it comes to dealing with


                                           -3-
me on the job.”). Aplt. App. at 38. Schmidt is not plaintiff’s current supervisor,

id. , and although plaintiff believed Schmidt has said things about her to UPS

management, she did not know to whom he may have spoken or what he may have

said. Id. at 38-40. “[A] plaintiff’s allegations alone will not defeat summary

judgment.” Morgan v. Hilti, Inc. , 108 F.3d 1319, 1324 (10th Cir. 1997).

      In addition, we note that plaintiff was not terminated in the traditional

sense of being fired. At least when her deposition was taken in November of

2000, she was still working for UPS. The termination referred to is called a

“working termination,” a status for employees whose potential terminations are in

the contract grievance process. In her deposition plaintiff referred to at least

three working terminations she had had, none of which resulted in her permanent

termination from UPS employment, although one apparently resulted in a brief

suspension. Aplt. App. at 102. Indeed, at the time of her deposition she was

under yet another working termination.    Id. at 103.

      We review the district court’s grant of summary judgment de novo,

applying the same legal standards under Fed. R. Civ. P. 56(c), as did the district

court, and examining the factual record in the light most favoring the party

opposing summary judgment.      See Gunnell v. Utah Valley State Coll.   , 152 F.3d

1253, 1259 (10th Cir. 1998). “Summary judgment is appropriate ‘if the

pleadings, depositions, answers to interrogatories, and admissions on file,


                                          -4-
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.’” Munoz v. St. Mary-Corwin Hosp.         , 221 F.3d 1160, 1164 (10th Cir. 2000)

(quoting Rule 56(c)). The movant has the initial burden to show the absence of

evidence to support the nonmovant’s case.           Id. Once this burden has been met,

however, the nonmoving party must go beyond the pleadings and present

“evidence sufficient to establish the existence, as a triable issue, of any essential

and contested element of her case.”     Perry v. Woodward , 199 F.3d 1126, 1131

(10th Cir. 1999). In addition, the district court may not consider hearsay evidence

in a deposition submitted to defeat summary judgment.           Starr v. Pearle Vision,

Inc. , 54 F.3d 1548, 1555 (10th Cir. 1995);     see also Pastran v. K-Mart Corp. ,

210 F.3d 1201, 1203 n.1 (10th Cir. 2000) (“When reviewing an order granting

summary judgment, we may only consider admissible evidence.”). Thus, it

matters not that defendant made reference to portions of plaintiff’s deposition or

that the district court disregarded portions considered speculative or inadmissible

hearsay.

       The district court determined that plaintiff failed to establish a prima facie

case based on either gender discrimination or a hostile work environment.

We agree. We have held that “[g]ender discrimination can be based upon sexual

harassment or a hostile work environment.”           See Gross v. Burggraf Constr. Co. ,


                                              -5-
53 F.3d 1531, 1535 (10th Cir. 1995) (citing         Meritor Savs. Bank, FSB v. Vinson     ,

477 U.S. 57, 65 (1986)). Notwithstanding plaintiff’s general assertions of sexual

harassment, she specifically denied that her supervisor, Marc Cortez, sexually

harassed her. Aplt. App. at 71. Thus, the issue is whether the district court erred

in granting summary judgment because a genuine issue of material fact exists as

to whether Cortez’s conduct and/or statements created a hostile working

environment for plaintiff because of her gender.         Gross , 53 F.3d at 1535.

Whether an environment is hostile is determined by examining the totality of the

circumstances.   See Harris v. Forklift Sys., Inc. , 510 U.S. 17, 23 (1993). “The

critical issue . . . is whether members of one sex are exposed to disadvantageous

terms or conditions of employment to which members of the other sex are not

exposed.” Id. at 25 (Ginsberg, J., concurring). Conduct not severe or pervasive

enough to create an environment that a reasonable person would find hostile is

simply beyond the purview of Title VII.        Id. at 21. “‘If the nature of an

employee’s environment, however unpleasant, is           not due to her gender , she has

not been the victim of sex discrimination as a result of that environment.’”

Gross , 53 F.3d at 1537 (quoting     Stahl v. Sun Microsystems, Inc.     , 19 F.3d 533,

538 (10th Cir. 1994) )(emphasis in      Gross ). “Normal job stress does not constitute

a hostile or abusive work environment,” nor are personality conflicts between

employees the business of federal courts.       Trujillo v. Univ. of Colo. Health


                                              -6-
Sciences Ctr. , 157 F.3d 1211, 1214 (10th Cir. 1998). “We cannot vilify every

supervisor that implements a policy with which an employee disagrees or that

monitors [the] employees’ conduct.”      Id.

      The district court held that plaintiff had failed to establish a prima facie

case because she did not supply “evidence, admissible at trial, to demonstrate

[d]efendant’s treatment of her, even if it is assumed to be negative, was based on

her sex.” Aplt. App. at 276. This was due in the main because plaintiff’s

evidence was “either speculative or based on inadmissible evidence.”      Id. at 277.

Again we agree. Plaintiff’s testimony regarding the different treatment of her

male co-workers was not based on personal knowledge but on what she was told

by others. For example, her knowledge that no other drivers had been written up

for “overalloweds,”   1
                          was based on her having asked the other drivers and being

told by two of them that they had not. This is hearsay, notwithstanding plaintiff’s

attempt to characterize it as “relevant to not [sic] to prove the truth of the matter

asserted but to prove that such statements were made to [plaintiff].” Aplt. Br.

at 13. Contrary to plaintiff’s claim, she in fact offered this testimony for the truth

of what they told her, i.e., that they did not receive write-ups for overalloweds.

Likewise, with respect to her contention that she was disciplined for using a curse



1
      An “overallowed” is a failure to complete the prescribed delivery route in a
timely manner.

                                               -7-
word while a supervisor was not, her knowledge of the incident with the

supervisor is based solely on what a union steward told her, not on anything she

heard. See Aplt. App. at 51-52. Plaintiff’s testimony as to “what [the union

steward] allegedly heard was not based on [plaintiff’s] personal knowledge of the

facts,” and the alleged statement of the steward cannot be considered in reviewing

the order granting summary judgment.     Gross , 53 F.3d at 1541.

       Although she claimed to have been subjected to more “ride alongs”   2
                                                                               than

any other worker, by her own admission, she was overallowed on the days her

supervisor said she was. Aplt. App. at 57. Indeed, she submitted documentary

evidence reflecting that she had the highest average of overalloweds in a group of

twenty-five drivers.   Id. at 265. In any event, she filed a grievance regarding her

claim of excessive ride alongs and was informed that there was no violation of the

collective bargaining agreement (CBA).     See Aplt. App. at 176-78. Other than

plaintiff’s disagreement with the meaning of the CBA, the facts as alleged amount

to no more than routine employee monitoring or a disagreement with her

supervisor. See Trujillo , 157 F.3d at 1214.




2
      A “ride along” consists of a supervisor accompanying a driver on the route
primarily to advise the driver on more efficient time management to help avoid
overalloweds.

                                          -8-
      She also alleges that she was written up for dress code violations while

male drivers were not. Again, the statement that “she knows the other drivers

were not written up for similar violations” is simply unsubstantiated.

      Next, she argues that Marc Cortez told her she could not do her job because

she was a woman. However, she did not know when he said this to her except to

note that “[i]t could be in a grievance.” Aplt. App. at 249. When questioned

further as to whether she was going on her own subjective belief she thought he

was making such comments because she was female, she could not remember if

Cortez had ever used words like “‘[b]ecause you’re a woman, you can’t do the

job.’” Id. at 72. This claim is therefore too speculative to withstand summary

judgment.

      Finally, she disputes the district court’s grant of summary judgment based

on complaints of rudeness received against her, which the district court ruled

plaintiff could not demonstrate were gender related. In her brief, plaintiff

contends that the working termination based on rudeness complaints constituted a

“tangible employment action.” Aplt. App. at 15. This, of course, is beside the

point, as is plaintiff’s subsequent reference to other working terminations based

on rudeness complaints.   See id. at 16. Plaintiff has totally failed to point to

anything in the record suggesting that she was subjected to disciplinary action for

rudeness complaints because of her gender.


                                          -9-
      We conclude that plaintiff has failed to demonstrate a genuine issue of

material fact and that the district court’s grant of summary judgment for

defendant was proper.

      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.


                                                    Entered for the Court


                                                    Bobby R. Baldock
                                                    Circuit Judge




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