                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 28, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    DIANA AGUIAR,

                Plaintiff-Appellant,

    v.                                                   No. 10-5002
                                             (D.C. No. 4:08-CV-00178-GKF-PJC)
    BARTLESVILLE CARE CENTER,                            (N.D. Okla.)
    a domestic for profit business
    association,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before LUCERO, TACHA, and MURPHY, Circuit Judges.



         Plaintiff Diana Aguiar worked as a certified medication aid (CMA) at the

defendant Bartlesville Care Center (the Center). During the course of her

employment, she claims that she was sexually harassed by a resident. Following

her termination for verbally abusing the resident, she filed suit under Title VII for



*
       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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
hostile work environment sexual harassment and retaliation. Ms. Aguiar appeals

from the district court’s order granting the Center’s motion for summary

judgment. We have jurisdiction under 28 U.S.C. § 1291, and affirm the order on

the retaliation claim and reverse the order on the hostile work environment claim.

                                          I.

      Ms. Aguiar first worked at the Center as a certified nurse assistant (CNA)

from 2002 to 2005. She returned to the Center in July 2006, and became a CMA

in 2007, which was her job when she was fired on May 14, 2007. Her job as a

CMA was to distribute medication to residents, including the resident she claims

sexually harassed her. Ms. Aguiar contends that the resident’s incessant groping

and verbal abuse created a hostile work environment. She further argues that she

was fired in retaliation for complaining about the harassment.

      The resident, who had a prosthetic leg, diabetes, and diabetic retinopathy,

was admitted to the Center in late August 2006. Despite these physical

impairments, he was able to ambulate throughout the facility. When the resident

arrived at the Center, he was involved in criminal proceedings concerning

domestic abuse, assault and battery, and violation of a protective order. The

record reflects that staff transported the resident to and from the courthouse to

attend various proceedings. Alex Dout, the Center’s administrator, says he was

aware of the resident’s criminal entanglements prior to firing Ms. Aguiar,

however, he could not remember when, from whom, or the circumstances under

                                         -2-
which he learned the information. For her part, Ms. Aguiar testified that it wasn’t

until after she was fired that she learned the resident “was sentenced or something

like that to [the Center] for assault and battery on his wife.” Aplt. App. at 70.

      Initially, Ms. Aguiar and the resident formed a friendship, but things

changed on January 12, 2007, when a care giver who had been working with the

resident quit. 1 Ms. Aguiar contends this was when the harassment began. There

are several documents generated in January 2007, which shed light on what the

Center knew about the resident’s behavior and its response. On January 11 (the

day before the care giver quit), a nurse noted that the resident was “requesting to

see a CNA, sent one down to him but he was requesting a certain CNA by name.

[A]dvised him that she was busy at the time and [he] became very agitated and

wanted that aid now.” Id. at 169. About an hour later, the same nurse reported

that “when [a] certain CNA did not go to his room he became very upset, acted

depressed and refused his meds.” Id. The next day, January 12, a different nurse

wrote that the resident was “very upset.” Id. He “ask[ed] why certain CNAs


1
       At her deposition, Ms. Aguiar testified that the care giver quit because of
the resident’s “[s]exual harassment.” Aplt. App. at 50. “He would touch on her,
kiss on her, and she was not comfortable with it.” Id. Ms. Aguiar further
testified that the care giver complained to Alex Dout, the administrator.
However, Ms. Aguiar’s testimony on this topic is inadmissable hearsay and
cannot be used on summary judgment. See Adams v. Am. Guar. & Liab. Ins. Co.,
233 F.3d 1242, 1246 (10th Cir. 2000) (quotation omitted) (stating that “[h]earsay
testimony that would be inadmissable at trial cannot be used to defeat a motion
for summary judgment because a third party’s description of a witness’ supposed
testimony is not suitable grist for the summary judgment mill”).

                                          -3-
(named) do not come to [his] room.” Id. She “advised [him] that CNA on duty

will assist [with] his needs, asking for [a] certain CNA is inappropriate. [A]dvised

that this nurse has witnessed him be inappropriate [with] CNAs [at] times[,]

therefore asking for specific person when [zero] care is needed cannot be an

option.” Id.

      The next document titled “RESIDENT STATUS SHEET,” noted that when

caring for the resident there should be “2 CNA staff in room at all times.” Id. at

165. It explained that the resident was “[i]nappropriate [at] times [with] staff.

X2 staff when doing cares; assisting [with] cares etc.” Id. A “Care Plan,” id. at

168, listed as a goal helping the resident “[d]emonstrate[] socially acceptable

behaviors.” Id. To meet this goal, the plan included the following approaches:

“Discourage resident from requesting only one CNA to care for him . . . [and]

must always have 2 staff in room to care for resident.” Id.

      The record also reveals that by the end of February 2007, Ms. Aguiar had

complained several times about the resident’s conduct to the Center’s director of

nursing, Suzanne Stahl, and its director of social services, David Yountz. On

February 22, the resident asked to speak with Ms. Stahl about “‘problems’ he was

having with Aguiar.” Id. at 142. The resident said the “problem” was

Ms. Aguiar’s efforts to avoid him. Ms. Stahl “[f]rankly explained to [the

resident] that [Aguiar] is not comfortable [with] his affections. And has

[complained of] this to this nurse several times. (Also David [Yountz] [with] SS

                                         -4-
has talked to [resident] about this).” Id. at 176. The resident suggested to

Ms. Stahl that “if Diane has a problem [with me] she needs to talk to [me] about

it.” Id. Ms. Stahl “[a]ssured [resident] that Diane, myself [and] SS Director will

get together soon [and] resolve this issue.” Id.

      The next morning, February 23, 2007, the resident again summoned

Ms. Stahl to his room. This time, the resident’s complaint was “that the

‘situation’ ([with] CMA) [was] getting worse. [He] state[d] ‘I’ve been accused of

rape.’” Id. at 177. When asked if Ms. Aguiar had said this directly to him, he

stated “‘no,’ it’s what I’ve heard. You know how word spreads.” Id. at 177-78.

The notes state that Ms. Stahl promised the resident that she, Mr. Yountz, and

Ms. Aguiar would meet with him later in the afternoon. At that meeting, “[a]ll

complain[t]s were aired [and the resident] agree[d] to stop touching [and] kissing

Diane’s hand [and] Diane will make sure he receives professional cares only

(from her) if he continues to act appropriately.” Id. at 178. “SS Director [and

Ms. Stahl] reiterated to [resident] that this behavior (touching staff) stops [with]

all staff members.” Id.

      The following Monday, February 26, 2007, Ms. Aguiar went to see

Ms. Stahl. She told her that the resident accused her of “defamation,” id. at 179,

and criticized her for complaining that he was “too . . . touchy,” id. “[Diane] very

upset [because] trying to do her job professionally.” Id. Ms. Stahl, accompanied

by Ms. Aguiar, went to the resident’s room, where Ms. Stahl told him to “stop


                                          -5-
bringing up the past,” id., and “[r]einforced that [there should be] no

inappropriate language or touching,” id.

      Despite these admonitions, Ms. Aguiar contends the resident continued his

harassment, which included kissing her hand, running his hand down her back to

her buttocks, and pulling her on his lap or on the bed, even when a second care

giver was present. The deposition testimony of a former co-worker confirms that

while she was serving as the second care giver along with Ms. Aguiar, the

resident “pull[ed] [Ms. Aguiar] down into [a] recliner and [held] her down there,

pinning her on top of him, holding her, not letting her get up.” Id. at 297-98.

This particular co-worker also testified that Ms. Aguiar complained to

Mr. Yountz, and that both Ms. Stahl and the assistant director of nursing,

Christine Blizzard, knew about the harassment. She testified that “everybody,

from all departments to residents amongst themselves[,] I mean everybody,” id. at

301, knew and talked about the situation between Ms. Aguiar and the resident.

      Ms. Aguiar says that she continued to complain, but all the Center did was

“talk[] to him,” id. at 69, log documentation, and have someone else deliver his

medications, which made the situation worse, because he would seek her out.

Although she could not identify specific dates, Ms. Aguiar testified at her

deposition that “[i]f I was there, something happened.” Id. at 56. Another

co-worker’s affidavit confirms that the resident “routinely and consistently

subjected Diana Aguiar to unwanted touching on numerous occasions,” id. at 322,


                                           -6-
and that the “administrators of [the Center] knew that [the resident] has a history

of physical abuse towards others and that he was consistently seeking out Diana

Aguiar and physically/sexually assaulting her,” id. at 323.

      The Center argues that it adequately responded to Ms. Aguiar’s complaints

by talking to the resident and making sure that there were always two people

present when caring for him. And according to its staff coordinator, Chris

Blizzard, in early 2007, he “suggested . . . that [Ms. Aguiar] move from working

on the west side of the building to working on the east side of the building. . . .

Aguiar refused. . . . I assumed that any problems she was having with [the]

Resident were not serious.” Id. at 157. In contrast, Ms. Aguiar’s affidavit states

that “[w]hen I complained, I was never given an option to move to another hall in

the facility. Even if it was suggested, and I do not recall this suggestion, there

were no attempts made by management at BCC to change my hall or follow

through with such a suggestion.” Id. at 305.

      Matters came to a head on May 13, 2007. Michael Sinks, Ms. Aguiar’s

supervisor that day, wrote about an incident in the dining room where the resident

began complaining in a loud voice about Ms. Aguiar “and past events from

2/23/07.” Id. at 186. When a nurse tried to calm him, the resident told his fellow

diners: “‘They are going to fucking stop the shit.’” Id. at 187. The resident

confronted Mr. Sinks when he came to his room to test his blood sugar,

demanding to know why Ms. Aguiar had not given him his medications.


                                          -7-
According to Mr. Sinks’s notes, just a few minutes later, the resident “walked [by

the] nurse[‘]s desk, went up north hall & headed straight to CMA ‘Diane.’

Res[ident] stated ‘Can’t you do your job.’ CMA stated ‘yes I can, but when you

interfere [with] me doing my job [and] bad mouth me it goes to the nurse, [and] if

you have anything else to say talk to the nurse.’” Id. at 187-88. The resident

called Ms. Aguiar a “‘bitch’ then . . . shove[d] [the] med[icine] cart [into her].”

Id. at 188. He then came at her, and “moved his left hand suddenly causing [her]

to jerk.” Id. Then, as if “nothing ever happened,” id., the “res[ident] slid [his]

hand on [the] side of his head [and] smiled,” id. Mr. Sinks called Christine

Blizzard, the assistant director of nursing, at home. 2 Ms. Blizzard told him to

send Ms. Aguiar home and the resident for an outside psychiatric evaluation.

      The following day when Ms. Aguiar came to work, she was told to go to

Mr. Dout’s office. With both Ms. Stahl and Ms. Blizzard present, he asked if she

called the resident a “prick.” When she admitted doing so, he fired her.

According to Ms. Aguiar, neither Ms. Stahl nor Ms. Blizzard said anything about

what happened the previous day or explained the history of her complaints about

the resident. Mr. Dout says when he made the decision to fire Ms. Aguiar, he

knew nothing about the situation between her and the resident, including her

history of complaints.

2
       According to Ms. Aguiar, Michael Sinks called Christine Blizzard at home
as many as two times prior during the weekend to report the escalating situation
that culminated in the hallway assault.

                                          -8-
      The district court heard oral argument on the Center’s motion for summary

judgment and issued an oral ruling. With regard to the hostile work environment

claim, the court assumed that Ms. Aguiar was sexually harassed, but concluded

that summary judgment was proper for two reasons. First, it found that the Center

“adequately responded to the sexually harassing conduct of which it was aware,”

id. at 392, noting that “[t]he resident’s care plan was modified by . . . requiring

two staff members to be present in the resident’s room when care was being

administered,” id., and Ms. Aguiar had the option of asking another CMA to take

medications to the resident. Second, it found that Ms. Aguiar “failed to come

forward with facts sufficient to show that the [Center] had knowledge of the more

egregious harassment than hand kissing, et cetera, which gave rise to the modified

care plan.” Id.

      As to the retaliation claim, the district court found that the Center had a

“legitimate non-discriminatory reason [for firing Ms. Aguiar]” and that

Ms. Aguiar failed “to show that the reason given is a pretext for retaliation here.”

Id. at 391. “The Center’s “[h]andbook here warned that verbal abuse of

residents . . . will result in immediate discharge.” Id. Alternatively, the court

found that Ms. Aguiar failed in her burden of demonstrating a prima facie case

because she “has not sufficiently established a causal connection between the

adverse employment action and the protected activity as there is insufficient




                                          -9-
evidence that Mr. Dout was aware of Ms. Aguiar’s complaints at the time he

terminated [her].” Id. at 391-92. 3

                                         II.

      “We review the district court’s grant of summary judgment de novo.”

Escue v. N. Okla. Coll., 450 F.3d 1146, 1152 (10th Cir. 2006). Summary

judgment is proper “if the pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56 (c)(2). “An issue is ‘genuine’ if there is sufficient evidence on each side so

that a rational trier of fact could resolve the issue either way.” Adler v. Wal-Mart

Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). “An issue of fact is ‘material’ if

under the substantive law it is essential to the proper disposition of the claim.”

Id. “We must view the evidence and all inferences that might be reasonably




3
       Ms. Aguiar also pleaded a state law claim for negligent supervision on the
theory that the Center failed to protect her from the assault and battery that took
place on May 13, 2007. Eventually, the resident was charged with and pleaded
guilty to assault and battery arising from the incident. The district court granted
summary judgment to the Center on the negligent supervision claim “for the same
reasons that her Title VII claims [for retaliation and hostile work environment]
fail,” Aplt. App. at 393, and entered judgment in favor of the Center. As an
alternative holding, the court held that even if summary judgment was improper,
it declined to exercise pendent jurisdiction over the claim, and dismissed it
“without prejudice.” Id. Based on our holding that the court erred in granting
summary judgment on Ms. Aguiar’s hostile work environment claim, we remand
for the court to reconsider its rulings with respect to the state law claim.

                                         -10-
drawn from it in the light most favorable to [the non-moving party].” Escue,

450 F.3d at 1152.

                                         III.

      “Sexual harassment is actionable under a hostile work environment theory

when the harassing conduct is sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working

environment.” Lockhard v. Pizza Hut, Inc., 162 F.3d 1062, 1071 (10th Cir. 1998)

(quotation and brackets omitted). This is true regardless of whether the

environment is created by a fellow employee or nonemployee, such as a customer,

because “the employer ultimately controls the conditions of the work

environment.” Id. at 1074.

      In cases where a plaintiff claims harassment by a nonemployee, we apply a

negligence theory. Id. at 1074. “The negligence analysis can be divided into two

separate inquiries, looking first, into the employer’s actual or constructive

knowledge of harassment, and second, into the adequacy of the employer’s

remedial and preventative responses.” Turnbull v. Topeka State Hosp., 255 F.3d

1238, 1244 (10th Cir. 2001) (quotation omitted).

      “With regard to knowledge, a plaintiff may prove actual knowledge based

on her reports of harassment to management-level employees or constructive

knowledge based on the pervasiveness of the sexual hostility within the working

environment.” Id. Although the Center says that it never heard any further


                                         -11-
complaints from Ms. Aguiar after late February 2007, Ms. Aguiar contends that

she continued to complain to her supervisors about the resident’s behavior. Thus,

there are genuine issues of material fact in dispute concerning whether or not the

Center had actual knowledge of the harassment. Alternatively, the deposition

testimony of a former co-worker that “everybody, from all departments to

residents,” Aplt. App. at 301, talked about the situation, is sufficient to create a

genuine issue regarding whether the Center had constructive knowledge of the

harassment.

      There is “no bright-line rule for measuring the [adequacy] of an employer’s

response.” Turnbull, 255 F.3d at 1244-45. Instead, we look at “whether the

response was reasonable under the circumstances.” Id. at 1245. “Key factors in

that determination are the promptness and effectiveness of any action.” Id.

Because “[i]t is not always possible for an employer to completely eliminate

offensive behavior, . . . the effectiveness inquiry looks not to whether offensive

behavior actually ceased but to whether the remedial and preventative action was

reasonably calculated to end the harassment.” Id. (quotation omitted).

      It is undisputed that in January and February 2007, the Center took some

steps to end the harassment when it talked to the resident and ordered that two

care givers be present when attending to him. Nonetheless, Ms. Aguiar contends

that the Center could have and should have done more once it learned that these

steps were ineffective. For its part, the Center says that it offered Ms. Aguiar the


                                          -12-
opportunity to move to the other side of the building and away from the resident.

But Ms. Aguiar denies that any such offer was made, and that is how matters

stand on summary judgment. Viewing the evidence in the light most favorable to

Ms. Aguiar, we conclude that a rational trier of fact could find that the Center’s

response was inadequate. Because there are genuine issues of material fact

concerning the Center’s knowledge and the adequacy of its response, summary

judgment was improperly granted on Ms. Aguiar’s hostile work environment

claim.

                                            IV.

         In cases where a Title VII plaintiff relies on indirect or circumstantial

evidence to prove retaliation, we examine the claim under the burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under this framework, the plaintiff carries the initial burden of establishing a

prima facie case, which requires her to “demonstrate (1) that [s]he engaged in

protected opposition to discrimination, (2) that a reasonable employee would have

found the challenged action materially adverse, and (3) that a causal connection

existed between the protected activity and the materially adverse action.” Argo v.

Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006)

(footnote omitted). 4 Once a plaintiff meets her initial burden, the burden shifts to

4
     We acknowledge that because Ms. Aguiar’s termination was “very closely
connected in time,” Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164,
                                                                  (continued...)

                                           -13-
the employer to articulate a legitimate, non-discriminatory reason for the adverse

action. If the defendant makes this showing, the burden shifts back to the

plaintiff to demonstrate the proffered explanation is pretext. See id. at 1202-03.

      It is undisputed that the Center articulated a legitimate, non-discriminatory

reason for firing Ms. Aguiar – she verbally abused the resident in violation of

written policy. It then fell to Ms. Aguiar to prove pretext. “To show that the

defendant’s proffered . . . reasons were actually a pretext . . .[,] the plaintiff must

demonstrate that the defendant’s . . . proffered reasons were so incoherent, weak,

inconsistent, or contradictory that a rational factfinder could conclude the reasons

were unworthy of belief.” Young v. Dillon Cos., 468 F.3d 1243, 1250 (10th Cir.

2006) (quotation omitted).

      Ms. Aguiar cannot prove pretext. The decision to fire her was made by

Mr. Dout. There is no evidence that he had any knowledge about her prior

complaints concerning the resident’s sexual harassment. According to

Ms. Aguiar, when she met with Mr. Dout, he asked her if she “really called [the

resident] a prick?” Aplt. App. at 65. She admitted doing so, and “tried to explain



4
 (...continued)
1172 (10th Cir. 2006) (quotation omitted), to a protected activity – her complaints
during the weekend of May 13, 2007, and her termination the following day – she
arguably established a causal connection for purposes of the prima facie case.
However, we need not address causation, because there is inadequate evidence to
prove pretext, for which temporal proximity between protected activity and the
alleged retaliation is not by itself sufficient to undermine the stated reason for
termination. Id.

                                          -14-
it. It didn’t matter. I wrote [what happened on May 13] down on the statement.”

Id. Because there is no evidence that Mr. Dout knew about her previous

complaints, Ms. Aguiar cannot establish that he had any motivation other than

enforcement of the rule as grounds for termination. Therefore, the district court

correctly concluded that summary judgment was proper on the retaliation claim. 5

      We AFFIRM the district court’s grant of summary judgment on the

retaliation claim. We REVERSE the grant of summary judgment on the hostile

work environment and negligent supervision claims and remand for further

proceedings.

                                                   Entered for the Court



                                                   Michael R. Murphy
                                                   Circuit Judge




5
       Ms. Aguiar argues that “even if Dout was unaware of [her] complaints,
there is an issue of fact regarding whether Stahl and Blizzard retaliated against
[her] since they knew of her complaints when she was fired and failed to inform
Dout themselves.” Aplt. Opening Br. at 22. But Ms. Aguiar never develops this
argument with any legal authority, and we decline to address it. See United States
v. Banks, 451 F.3d 721, 728 (10th Cir. 2006) (refusing to address an argument
that is not supported by any legal authority).

                                        -15-
