EBEL, Circuit Judge.
This case comes before us on appeal of the district court's order granting summary judgment in favor of the defendants. We find that the district court properly granted summary judgment on the plaintiff's quid pro quo harassment claims. However, we find that summary judgment was inappropriate on the harassment claim concerning a hostile work environment and accordingly remand for trial.
Beginning on September 1, 1988, Belinda Martin was employed by the defendant Larry Gudgel and served in various capacities in companies that Gudgel owned, including: People Leasing Co., defendant Business Solutions, Inc., and defendant Nannie and the Newborns, Inc.
Throughout her employment Martin was the target of inappropriate behavior. In the Summer of 1988, Gudgel asked Martin to accompany him to a convention in Colorado. She agreed but made it clear that as a condition to her attending the conference, she must have her own hotel room. When they arrived at the convention, she was told that the hotel did not have a separate room and she was forced to share a suite with Gudgel.
In October of 1988, while at another convention in Tulsa, Oklahoma, Martin was propositioned for sex by one of Gudgel's clients which she refused. The next day Gudgel came to Martin's hotel room and she told him about the incident. Gudgel scolded her and told her that having sex with the client would not have hurt anything and that
In December of 1988, Gudgel drove Martin home from work after they had finished working for the day. Gudgel went into Martin's house, placed his hands on her shoulder and requested that she accompany him to Lawton, Oklahoma, for the night. She refused, saying that she did not mess around with people with whom she worked. He explained that "he was the owner and not [her] supervisor there was nothing [she] could do." EEOC Affidavit at 2.
In May of 1990, Gudgel inquired of Martin whether she had informed anyone of the rape that had occurred in October of 1988. Martin informed Gudgel that she had told no one. At the same time Gudgel asked Martin out on a date, which she refused. Martin felt intimidated during these exchanges.
In addition to Gudgel, several of Gudgel's employees also harassed Martin. Beginning in February of 1989, and continuing thereafter, Martin was harassed by her supervisor, Lonnie Rothner. On one occasion, when picking Martin up at her house, Rothner showed her some lingerie and offered it to her if she would model it. Martin refused. During a drive to a convention in Tulsa, Rothner waived an artificial penis at Martin and placed it in his belt in front of her. Finally, while at the same convention, Rothner obtained a key to Martin's hotel room from the front desk, entered without her permission, and solicited sex which Martin declined.
In July of 1989, Martin was promoted to an officer of one of Gudgel's companies, Nannie and the Newborns (N & N). While an officer of N & N, Martin was subjected to repeated sexual innuendoes and embarrassing remarks from one of her co-employees, Max Clark. These remarks continued as long as she was employed there.
On May 18, 1990, Martin was fired from her position at N & N by Jerry Lassiter, the General Manager. The reasons given for her termination were that Martin had asked the bookkeeper to withhold information about certain financial agreements from the owner,
On August 20, 1990, Martin filed a charge of discrimination with the Oklahoma Human Rights Commission alleging that Gudgel intimidated and sexually harassed her. She also charged that Gudgel fired her because he was afraid that she would tell other employees about his actions. On August 20, 1990, Martin also filed a formal complaint with the Equal Employment Opportunity Commission ("EEOC"). Although the EEOC did not complete an investigation, it ultimately issued a right-to-sue letter.
The instant action was filed on April 19, 1991. Martin alleges that she was sexually harassed in violation of Title VII, 42 U.S.C. § 2000 et seq., and in pendent state law claims that she was wrongfully terminated, that she was the victim of the intentional infliction of emotional distress, and that she relied on material misrepresentations made by Gudgel. The district court granted the defendants' motion for summary judgment on May 5, 1992. The court found that the plaintiff's Title VII claims were time barred, that she failed to allege sufficient evidence of sexual harassment, and that she failed to offer evidence that might rebut the legitimate, nondiscriminatory reasons for the termination offered by the defendants. Judgment was entered on June 12, 1992.
Standard of Review
We review summary judgment orders de novo, using the same standards applied by the district court. Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). 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 judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986); Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). The moving party bears the initial burden of showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). To sustain this burden, the non-moving party cannot rest on the mere allegations in the pleadings. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Applied Genetics Int'l v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).
The plaintiff-appellant, Belinda Martin, appeals from the order of the district court granting summary judgment to the defendants on her federal claims. In her complaint, Martin alleges that she was the victim of sexual harassment in violation of Title VII. Sexual harassment under Title VII can be shown under one of two principle theories: quid pro quo discrimination or hostile work environment. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987).
The district court found that the plaintiff in the instant case failed to establish a claim of sexual harassment under either quid pro quo or hostile environment theories. The court concluded that Martin's claims were time barred because most of the incidents of harassment occurred outside of the 300 days prior to her filing a complaint with the EEOC. Those incidents that did occur within the 300 day limit were found to be insufficient, as a matter of law, to establish a claim of harassment. The court found that there was insufficient evidence of quid pro quo harassment and that the plaintiff failed to rebut the legitimate reasons for the termination proffered by the defendants. According to the district court, the evidence of hostile environment was also insufficient because it lacked specificity.
A. Time Bar
The primary reason asserted by the district court for granting the defendants' motion for summary judgment was that the plaintiff's claims were time barred. The district court held that "[t]he acts of harassment that plaintiff alleges either all occurred more than 300 days prior to her filing with the EEOC or are insufficient to establish a claim of sexual harassment." Order at 2-3. According to 42 U.S.C. § 2000e-5(e), a charge of discrimination must be filed within 300 days after the alleged unlawful practice occurs.
The plaintiff admits that many of the alleged acts of harassment occurred outside the time limit imposed by Title VII including: the lingerie, artificial penis, and hotel room entry incidents as well as the rape. Br. in Opposition to Summ. Judgment at 6. If
In Furr v. AT & T Technologies, Inc., 824 F.2d 1537 (10th Cir.1987), this court recognized the continuing course of conduct doctrine in the context of an analogous claim under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Under that doctrine, a claim of discrimination may include challenges to incidents which occurred outside the statutory time limitations of Title VII if the various acts constitute a "continuing pattern of discrimination." Furr, 824 F.2d at 1543. Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 984 (10th Cir. 1991), applied the continuing course of conduct doctrine to a Title VII claim. There must, however, be at least one instance of the discriminatory practice within the filing period for the doctrine to apply, and the earlier acts must be part of a continuing policy or practice that includes the act or acts within the statutory period. Furr, 824 F.2d at 1543.
In determining whether the prior incidents of discrimination constitute a continuing course of discrimination or whether they are discrete unrelated acts, we have adopted the approach taken by the Fifth Circuit in Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971, 981 (5th Cir.1983), cert. denied, 479 U.S. 868, 107 S.Ct. 232, 93 L.Ed.2d 158 (1986) and Waltman v. International Paper Co., 875 F.2d 468, 474-75 (5th Cir.1989). Purrington v. University of Utah, 996 F.2d 1025 (10th Cir.1993). In Berry, the court set forth several nonexclusive considerations relevant to the continuing violation question including: (i) subject matter —whether the violations constitute the same type of discrimination; (ii) frequency; and (iii) permanence — whether the nature of the violations should trigger an employee's awareness of the need to assert her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate.
Examining the plaintiff's allegations in light of the Berry factors, we conclude that the plaintiff has introduced sufficient facts to raise a triable issue on whether Gudgel and his companies engaged in a continuing course of discrimination such that the district court should consider the incidents that occurred prior to the 300 day time limitation. First, all the incidents alleged by the plaintiff involved sexual harassment. Second, the incidents are alleged to have occurred consistently and frequently over the course of her employment. Martin's complaint asserts that she was harassed from the beginning of her employment until she was fired and her deposition describes a fairly continuing pattern of sexual harassment. She claims that
Having found that Martin provided sufficient facts to demonstrate that there is a genuine issue of material fact concerning the existence of a continuing violation, for purposes of summary judgment we must now proceed to determine whether all the incidents alleged, including those within and outside of the limitations period, are sufficient to establish a case of sexual harassment under either the quid pro quo or hostile work environment theories. See Estate of Pitre v. Western Elec. Co., 975 F.2d 700, 705 (10th Cir.1992); Allen, 928 F.2d at 984; Furr, 824 F.2d at 1543.
B. Quid Pro Quo Discrimination
To prevail on a quid pro quo discrimination claim, the plaintiff must show that concrete employment benefits were conditioned on submission to sexual conduct. Hicks, 833 F.2d at 1413. The district court found that the plaintiff failed to present any evidence that her "employment was conditioned on granting sexual favors to Gudgel." Order at 3. It also found that the plaintiff "presented no facts in rebuttal of defendants' evidence that plaintiff's poor job performance, rather than Gudgel's advances explained her termination." Id. We agree.
The record is devoid of any evidence that Martin's employment was conditioned on granting sexual favors to Gudgel or to any of her supervisors or coemployees. In her submissions to this court, the plaintiff is unable to direct our attention to any examples of any such conditions occurring either within or outside of the time limitations imposed under Title VII. Instead, she relies only on her general conclusory allegations that she was terminated because of her refusal to submit to Gudgel's advances and her complaints about his behavior. Thus, Martin's quid pro quo claim is one for wrongful termination.
The Supreme Court has established, and this circuit has repeatedly adopted, a three-part test to determine
In this case, the district court found that the plaintiff failed to establish a prima facie case because she did not present any evidence that she was fired because she refused to submit to the sexual demands of Gudgel or his employees. As an alternate rationale for its holding, the court found that the plaintiff failed to rebut the defendants' legitimate nondiscriminatory reasons for her termination.
In response to the initial complaint, the defendants proffered two reasons for Martin's termination: that she had attempted to conceal information about financial dealings from Gudgel, and that she failed to complete assignments when requested. To support these justifications, the defendants submitted the separation notice used when Martin was terminated as well as affidavits from a co-worker and the company bookkeeper.
We agree with the district court that Martin's conclusory statements concerning the validity of the defendants' justifications are inadequate to overcome summary judgment. At this stage of the analysis, we are charged to determine "whether the evidence, interpreted favorably to the plaintiff, could persuade a reasonable jury that the employer had discriminated against the plaintiff."
C. Hostile Work Environment
To prevail under a hostile work environment theory, the plaintiff must show that sexual conduct "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." Vinson, 477 U.S. at 65, 106 S.Ct. at 2404-05 (quoting 29 C.F.R. § 1604.11(a)(3) (1986)). "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." Vinson, 477 U.S. at 67, 106 S.Ct. at 2405 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982)).
The district court considered the incidents involving Clark and Gudgel that occurred within the time limitation and concluded that they were insufficient to support a hostile environment claim. Because we find that the plaintiff put forward sufficient facts to establish a genuine dispute as to whether the earlier incidents should be considered part of a continuing violation, we conclude that the district court improperly limited its consideration to those incidents that occurred within the time limitation.
For the foregoing reasons the judgment of the district court is VACATED in part and the case is REMANDED for trial on the plaintiff's hostile environment claim.
Despite the plaintiff's failure to object to harassment by individuals other than Gudgel, we find we are not divorced of jurisdiction to consider the full range of her complaints. Martin does not allege that Clark and Rothner harassed her as part of an independent count. She did not seek personal liability against either Clark or Rothner; in fact they are not parties to this suit. Rather, she alleged their harassment as a means to show that the defendant corporations and Gudgel, as the owner of these corporations, had a policy of tolerating and accepting harassment. Further, we find we have jurisdiction under the standards established by our sister circuits that have considered this issue. According to the First, Second, and Fourth Circuits, consideration of complaints not expressly included in an EEOC charge is appropriate where the conduct alleged would fall within the scope of an EEOC investigation which would reasonably grow out of the charges actually made. Powers v. Grinnell Corp., 915 F.2d 34, 38-39 (1st Cir.1990); Butts, 990 F.2d at 1402; King, 538 F.2d at 583. We conclude that the harassment by Clark and Rothner could reasonably have been expected to come to light in the scope of the investigation of the complaint filed by Martin.
The district court also found that the plaintiff could not rely on the comments made by Max Clark to establish a hostile environment claim because she "could point to no specific remark or any specific conduct by Clark that she found offensive, even though she was repeatedly given the opportunity to do so." Id. We also disagree with this conclusion. While it is true that Martin failed to recall the specific words used by Clark, she did testify at her deposition that "[h]e would do things — like, if I bent over maybe in my office to pick up something and he walked by he would just make accusations to the point that maybe, well, bending over like that anything could be, you know, stuck up me or something like that." Martin Depo. at 16. We find this recollection to be sufficiently specific, and the comment to be sufficiently harassing that it could support a hostile environment claim. This is especially true in light of the testimony of Martin's co-workers. Clark admitted that he would regularly make sexual comments to Martin. Clark Depo at 33-35. Rothner verified that remarks were often made to Martin. Rothner Depo. at 34.
The district court also discredited Martin's allegations about Clark's remarks because Martin testified that she generally ignored them. Martin Depo. at 19. However, we do not feel that Martin's typical reaction to Clark's comments necessarily means that she did not find them offensive. Martin was offended enough to complain to Clark's supervisor, Pat Jennings. Martin Depo. at 25. Her testimony is corroborated by Rothner's testimony that Jennings approached him about instructing Clark to "take it easy" on Martin. Rothner Depo. at 34.