                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 9 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    CARLA SHOEMAKER,

                Plaintiff-Appellant,

    v.                                                   No. 97-6251
                                                    (D.C. No. 96-CV-1133)
    NATIONAL MANAGEMENT                                  (W.D. Okla.)
    RESOURCES CORPORATION;
    GERALD MATHENY,

                Defendants-Appellees.




                            ORDER AND JUDGMENT *



Before BALDOCK, EBEL, and MURPHY, 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. 34.1.9. 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      This order and judgment is not binding precedent, except under the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. 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.
      Appellant Carla Shoemaker brought this suit against her former employer,

National Management Resources Corporation (NMRC), and former immediate

supervisor, Gerald “Top” Matheny, alleging that she was sexually harassed by

Matheny and discharged by NMRC in retaliation for complaining about the

harassment, both in violation of Title VII. Plaintiff also asserted state law claims

for intentional infliction of emotional distress, discrimination under the Oklahoma

Discrimination in Employment Act, Okla. Stat. tit. 25, § 1302, wrongful discharge

in violation of Oklahoma public policy, and negligent hiring. She appeals from

the district court’s grant of summary judgment in favor of defendants on all of her

claims. We have jurisdiction under 28 U.S.C. § 1291, and reverse.

      Because we are reviewing a grant of summary judgment, we must view the

evidence in the light most favorable to plaintiff as the nonmoving party, and draw

all reasonable inferences from the evidence in her favor. See Bell v. United

States, 127 F.3d 1226, 1228 (10th Cir. 1997). Under that standard, the facts are

as follows. Plaintiff was employed by defendant NMRC from March 1994 until

March 15, 1995. On February 5, 1995, defendant Matheny was hired as

plaintiff’s supervisor. He immediately began a campaign of sexual harassment

against her. He asked her out to dinner on his first day at work, and gave her his

motel room number and telephone number the next day, assuring her that nobody

else had those numbers. See Appellant’s App. at 99. He repeatedly told her he


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wanted to develop a “close ‘working relationship’” with her. Id. at 98. He

continuously called her at home to see if she wanted to go out with him, see id.

at 98, and when she told him she had a boyfriend, he repeated that he wanted only

a close working relationship with her, see id. at 100. He would sit in front of her

desk and stare at her for perhaps fifteen minutes at a time, see id. at 99, and

moved the copy machine into his office so that she would have to stand with her

back to him to make copies, see id. at 96, 100. He once slammed a book shut in

her face while she was reading, barely missing her nose. See id. at 99, 126.

      Matheny cornered plaintiff in private to tell her a story about how big he

thought his penis was until he unwrapped the complimentary “condom” in his

motel room, and then realized the “condom” was actually a shower cap. See id.

at 100, 122-23, 150-53, 203. He also privately told her a story about a friend of

his having sex with a woman who was screaming, but it turned out she was having

an asthma attack. See id. at 100, 125. He privately told her about getting a “blow

job” from a beautiful woman for only $10.00 at the motel where he was staying.

Id. at 100. Matheny admitted that he told a joke about getting a “penguin job” for

$20.00; that is, he dropped his pants for a “blow job,” but the woman took off

with his money. See id. at 204-05. Plaintiff felt “belittled and intimidated” by

Matheny’s conduct, but was afraid of his temper and afraid to complain. Id.

at 100.


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      Matheny once cornered plaintiff against a wall for ten or fifteen minutes.

See id. at 100, 142-44. She was so terrified that she could not even recall what

was said. See id. at 100. Matheny once called her home and asked her boyfriend

if she was upset about something that had happened at work. See id. at 100,

131-32.

      Matheny asked plaintiff to do push-ups for him on at least two occasions.

See id. at 100. Once, when she was carrying aerobic tights through the office on

her way to change clothes in the restroom, Matheny told her it looked like she

needed Vaseline to help put her tights on and asked her if she needed any help.

See id. at 101, 128. He patted her on her behind once after asking her to get up

and retrieve a file for him. See id. at 101, 166. He also harassed another female

employee by pulling on the breast pocket of her jacket where a button was

missing and making a comment that he had “one of those” back in Wisconsin. Id.

at 163.

      Plaintiff said that she suffered anguish, uneasiness, fear, belittlement,

intimidation, depression, and stress due to Matheny’s conduct. See id. at 98-100.

She sometimes broke down crying at work, see id. at 127-28, 154-55, 172, and

changed from an “outgoing, energetic, bubbly person” to one who “kept to

herself,” “kept quiet,” “did her job,” and “barely spoke,“ id. at 170.

      Plaintiff finally wrote a letter to the president of NMRC about Matheny’s


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conduct. See id. at 98. She asked for a paid leave of absence while the company

investigated her complaint, see id. but upper management’s initial reaction was

that she must not be doing her job, see id. at 193. NMRC’s president and

Matheny’s district manager discussed the matter and decided that plaintiff would

be more easily replaced than Matheny. See id. at 178-79. A fellow employee

who tried to talk with another manager about the alleged harassment said he was

“stonewalled.” Id. at 156. NMRC management never interviewed the other

employees plaintiff said she had confided in, see id. at 177, and management gave

her the option only to tolerate Matheny’s conduct or quit her job, see id. at 182.

When she told NMRC management that she could no longer tolerate Matheny’s

harassment, they terminated her on the spot. See id. at 96-97, 102, 111, 134, 181,

184.

       On appeal, plaintiff asserts that the district court erred: (1) in concluding

she had not presented sufficient evidence of a hostile work environment; (2) in

finding no basis for employer liability on the part of defendant NMRC for the

actions of defendant Matheny; (3) in deciding a disputed question of fact material

to her retaliation claim; (4) in concluding that she had not presented sufficient

evidence to support her claim for intentional infliction of emotional distress; and

(5) in granting summary judgment to defendants on her claims under the

Oklahoma Discrimination in Employment Act, Okla. Stat. tit. 25, § 1302, and


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Oklahoma public policy.

      We review the grant of summary judgment de novo, applying the same

standard used by the district court. See Bell, 127 F.3d at 1228. Summary

judgment may be granted if the pleadings and any supporting documentary

materials “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);

see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party

is entitled to a judgment as a matter of law if on the undisputed facts there is

insufficient evidence on an issue for which the nonmoving party will bear the

burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)

(discussing Rule 56(c)).

      The district court erred in granting summary judgment to defendant NMRC

on plaintiff’s hostile work environment claim. 1 “‘For sexual harassment to be

actionable, it must be sufficiently severe or pervasive to alter the conditions of

[the victim’s] employment and create an abusive working environment.’” Hicks

v. Gates Rubber Co., 833 F.2d 1406, 1414 (10th Cir. 1987) (quoting Meritor Sav.


1
       The district court correctly determined that plaintiff’s allegations in the
lawsuit are reasonably related to the claims presented in her EEOC charge, and
she has therefore exhausted her administrative remedies. See Jones v. Runyon, 91
F.3d 1398, 1400 (10th Cir. 1996), cert. denied, 117 S. Ct. 1243 (1997). The
district court also correctly noted that defendant Matheny cannot be held liable in
his personal capacity on plaintiff’s Title VII claims. See Haynes v. Williams, 88
F.3d 898, 901 (10th Cir. 1996).

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Bank v. Vinson, 477 U.S. 57, 67 (1986) (further quotation omitted, alteration in

original)); cf. Witt v. Roadway Express, No. 96-3147, 1998 WL 83055, at *6-*7

(10th Cir. Feb. 27, 1998) (holding in case alleging hostile work environment

based on race discrimination and harassment that “pervasiveness and severity are

independent and equal grounds on which to support violations of [42 U.S.C.]

§ 1981”). Defendants challenge plaintiff’s allegations of sexual harassment by

Matheny as either unsupported by competent evidence, controverted, or not

showing sexual harassment at all. We disagree. All of plaintiff’s allegations set

forth above are supported by evidence allowed under Rule 56. Further, it is

inappropriate to engage in a factual debate on summary judgment; rather, we must

construe the evidence and inferences arising from it in the light most favorable to

plaintiff as the nonmoving party. See Bell, 127 F.3d at 1228. Moreover, except

for the book-slamming incident, the incidents alleged by plaintiff are either

overtly sexual or could reasonably be construed as sexual. Her allegations are

considerably more than enough to create a triable factual dispute as to the

existence of a hostile work environment due to sexual harassment. There is no

need to go into the nuances in this case.

      The district court also erred in finding no basis to hold NMRC liable for

Matheny’s alleged actions. Construed in plaintiff’s favor, the evidence set forth

above allows the inference that NMRC’s management decided that plaintiff would


                                            7
be easier to replace than Matheny, and simply fired her when she complained that

he harassed her.

      The district court should not have resolved the parties’ factual dispute as to

whether plaintiff voluntarily resigned her position or was fired in retaliation for

complaining of Matheny’s alleged harassment. See Concrete Works of Colo., Inc.

v. City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing

Anderson, 477 U.S. at 249). Therefore, plaintiff’s retaliation claim must be

reinstated for further proceedings.

      The district court summarily dismissed plaintiff’s state law claims based on

its conclusions that her Title VII claims were inadequately supported. Because

we reverse the district court’s conclusions on plaintiff’s Title VII claims, we also

reverse its decision on plaintiff’s state law claims and remand for the district

court’s reconsideration of these claims in the first instance.

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

Oklahoma is REVERSED, and the case is REMANDED for additional

proceedings consistent with this order and judgment.



                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge

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