Beverly T. Purrington v. University of Utah, et al.

[1] In September, 1985, Beverly T. Purrington (Purrington) was
hired by the University of Utah as the Program Coordinator at the
Women's Resource Center (WRC), at which time Shauna Adix (Adix)
served as the WRC Director. In March, 1986, Purrington contends
that Adix began sexually harassing her. The harassment consisted
of Adix frequently touching Purrington; pressing her body, namely
her breasts, against Purrington; trapping Purrington in corners
and against walls and obstructing passageways so that Purrington
could not get by; standing close to and putting her arm around
Purrington; and making sexually suggestive gestures and lewd and
inappropriate sexual comments to Purrington and other women. (R.,
Appellant's Appendix, Vol. 1 at 371-73, 543-48).

[2] Purrington objected, both orally and in writing, to Adix about
this conduct. (R., Appellant's Appendix, Vol. 2 at 548, 562, 694,
918-20). Purrington also discussed the problem with others,
including Kaye Coleman, Director of the University Office of
Equal Opportunity (OEO); Norman Gibbons, Dean of Student Affairs
and Services; Afesa Adams, Adix' immediate supervisor and
University Associate Vice President; and James Clayton,
University Provost. (R., Appellant's Appendix, Vol. 1 at 371-73;
Vol. 2 at 536-39, 554-58, 628-30, 873, 918).

[3] Adix left the WRC on May 31, 1988, to begin work at the School
of Social Work. Purrington had no direct physical or
interpersonal contact with Adix after that date. Following Adix'
departure from WRC, Purrington cites two incidents as
constituting part of a continuing sexual harassment in violation
of Title VII. At the School of Social Work in the spring of 1989,
Purrington witnessed Adix place her arm around a woman in a
manner which Purrington found inappropriate. Second, Purrington
was informed by a former WRC staff member that in the summer of
1989, Adix hugged the former staff member who was annoyed by such
contact. Purrington did not witness this occurrence.

[4] Purrington filed this action alleging sexual harassment through
a hostile work environment and retaliation, both in violation of
Title VII, Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e,
et seq. The district court granted summary judgment to all
defendants on Purrington's hostile work environment claim, as the
claim was untimely. The retaliation claim was tried to the court
which ruled that Purrington failed to prove retaliation by any
defendant.

[5] On appeal, Purrington contends that the district court erred
in: (1) granting summary judgment dismissing as untimely
Purrington's hostile work environment claim, (2) refusing to
shift the burden of proof to defendants on the retaliation claim,
in accord with Price Waterhouse v. Hopkins, 490 U.S. 228, 109
S.Ct. 1775, 104 L.Ed.2d 268 (1989), (3) requiring that Purrington
prove intent rather than causation on her retaliation claim, and
(4) excluding testimony proffered by Purrington.

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[8] In Utah, a plaintiff must file a Title VII discrimination
charge within 240 days of the alleged discriminatory act.[fn1]
Purrington filed her charge on July 28, 1989. Thus, her claim is
timely only with respect to discriminatory acts which occurred
after November 30, 1988. The district court held that because
Adix neither touched nor made comments to Purrington once Adix
left the WRC on May 31, 1988, no hostile work environment existed
after that date. Therefore, for Purrington's untimely claim of
sexual harassment to survive, she must either prove that a
continuing violation existed or establish equitable tolling.

* * *

[10] "[A] hostile environment claim usually involves a continuing
violation." Waltman v. International Paper Co., 875 F.2d 468,
476 (5th Cir. 1989). To invoke the continuing violation exception
to the Title VII charge-filing deadlines, Purrington must show
either (1) a series of related acts taken against a single
individual, one or more of which falls within the limitations
period, or (2) the maintenance of a company-wide policy of
discrimination both before and during the limitations period.
Bruno v. Western Elec. Co., 829 F.2d 957, 961 (10th Cir. 1987).

* * *

[12] To prove a series of related acts, Purrington must show that
the acts rise to the level of a "dogged pattern" of
discrimination as distinguished from "isolated and sporadic
outbreaks." Id. The evidence must "support[] a determination
that the `alleged discriminatory acts are related closely enough
to constitute a continuing violation.'" Id. (citing Berry v.
Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th
Cir. 1983)). "Courts have not formulated a clear standard for
determining when alleged discriminatory acts are related closely
enough to constitute a continuing violation and when they are
merely discrete, isolated, and completed acts which must be
regarded as individual violations." Berry, 715 F.2d at 981. The
Berry court found three inquiries relevant, though not
exhaustive: (1) whether the alleged acts involve the same type of
violation, (2) whether the acts are recurring versus isolated;
and perhaps most important, (3) whether the acts have the degree
of permanence which should alert the employee to the duty to
assert her rights. Id. Permanency depends on what the plaintiff
knew or should have known at the time of the violation. In noting
that acts of harassment which create a hostile environment
generally have a lesser degree of permanence, the Fifth Circuit
provided as an example that, "[i]f the person harassing a
plaintiff leaves his job, the harassment ends...." Waltman, 875
F.2d at 476.

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[16] "[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 v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th
Cir. 1987). "[I]ncidents involving employees other than the
plaintiff are relevant in establishing a generally hostile work
environment." Id. at 1416.

* * *

[18] The district court indicated that "[o]bserving one act of
alleged harassment, and hearing about another, both of which
occurred about a year after the alleged harassment of plaintiff
ceased, does not rise to the level of a `dogged pattern' of
discrimination." (R., Appellees' Supplemental Appendix at 35-36).
We agree. The two incidents Purrington cites are not related
closely enough to evidence a dogged pattern of discrimination and
thereby constitute a continuing violation.

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[20] Alternatively, a continuing violation may be established with
evidence of a "pervasive, institutionalized `system' of
discrimination," Elliott v. Sperry Rand Co., 79 F.R.D. 580,
585-86 (D.Minn. 1978), which typically involves discrimination
through an employer's policies or practices. "A refusal to
rectify a discriminatory practice or a repetition of the practice
itself can render the act a continuing violation of civil
rights." Ligon v. Frito-Lay, Inc., 82 F.R.D. 42, 48
(N.D.Tex. 1979); Marlowe v. Fisher Body, 489 F.2d 1057 (6th
Cir. 1973).

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[29] The timely filing of a discriminatory charge may be equitably
tolled. Irwin v. Veterans Admin., 498 U.S. 89, 94-95, 111 S.Ct.
453, 457, 112 L.Ed.2d 435 (1990). In this instance, the district
court found that the principles of equity do not demand tolling
of the statute of limitations. (R., Appellant's Appendix, Vol. 1
at 274). "[T]he `application of equitable doctrines rests in the
sound discretion of the district court; absent a showing of abuse
of discretion, the district court's exercise thereof will not be
disturbed on appeal.'" E.E.O.C. v. General Lines, Inc.,
865 F.2d 1555, 1558 (10th Cir. 1989) (citing McKinney v. Gannett
Co., 817 F.2d 659, 670 (10th Cir. 1987)).

* * *

[30] The time limit for filing a discrimination charge may be
equitably tolled "where a plaintiff has been `lulled into
inaction by her past employer, state or federal agencies or the
courts.'" Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984).
Under Tenth Circuit law, Purrington must show that the University
engaged in "active deception" which caused her filing to be
untimely. Scheerer v. Rose State College, 950 F.2d 661, 665
(10th Cir. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 2995,
120 L.Ed.2d 872 (1992); Johnson v. United States Postal Serv.,
861 F.2d 1475, 1481 (10th Cir. 1988) ("In this circuit, a Title
VII time limit will be tolled only if there has been `active
deception.'"), cert. denied, 493 U.S. 811, 110 S.Ct. 54, 107
L.Ed.2d 23 (1989); Martinez, 738 F.2d at 1110 (10th Cir. 1984)
("[T]he time limits contained in Title VII will be tolled only
where the circumstances of the case rise to the level of `active
deception' sufficient to invoke the powers of equity.").

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[34] A knowing plaintiff has an obligation to file promptly or lose
her claim. Purrington testified that she believed she was a
victim of sexual harassment. (R., Appellees' Supplemental
Appendix at p. 10). Once Adix left the WRC, Purrington waited
fourteen months to file her charge. Assuming arguendo that
Coleman's statements to Purrington were actively deceptive by
early 1988, Purrington was aware that her complaints and those of
others were not being addressed by the Impact Assessment. (R.,
Appellant's Appendix, Vol. 1 at 260-61). By June 20, 1988,
Purrington knew that her allegations were not being addressed by
the self-study. (R., Appellant's Appendix, Vol. 2 at 1002). Had
Purrington pursued formal action against Adix when she knew that
neither the Impact Assessment nor the self-study were going to
contain her allegations, or within a reasonable time thereafter,
her claim of hostile work environment would have been timely.

* * *

[37] The district court found that the defendants did not unlawfully
retaliate against Purrington in violation of Title VII by not
selecting her as the new WRC director. The court's factual
findings regarding retaliation may be reversed on appeal only if
they are clearly erroneous. Anderson v. City of Bessemer City,
470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518
(1985); Colon-Sanchez v. Marsh, 733 F.2d 78, 81 (10th Cir.),
cert. denied, 469 U.S. 855, 105 S.Ct. 181, 83 L.Ed.2d 115
(1984).

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[39] In Price Waterhouse, the Supreme Court held that where there
is direct evidence that "a decision was a product of a mixture of
legitimate and illegitimate motives," and where the plaintiff
proves that the discriminatory factor was a substantial
motivating reason for the decision, the burden of persuasion
shifts to the defendant to show that it would have made the same
decision even in the absence of the discriminatory factor. Id.
at 247, 259, 276, 109 S.Ct. at 1788, 1795, 1804.

* * *

[48] To establish a prima facie case of retaliation, a plaintiff
must show: (1) protected opposition to discrimination; (2)
adverse action by an employer contemporaneous with or subsequent
to the employee's protected activity; and (3) a causal connection
between such activity and the employer's action. If a prima facie
case is established, the burden of production shifts, and the
defendant must articulate a legitimate, nondiscriminatory reason
for the adverse action. "Once the defendant has dispelled the
inference of retaliation by establishing a legitimate reason,
`the plaintiff may still prevail if she demonstrates the
articulated reason was a mere pretext for discrimination.'"
Anderson v. Phillips Petroleum Co., 861 F.2d 631, 634 (10th
Cir. 1988) (citing Burrus v. United Tel. Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071, 103
S.Ct. 491, 74 L.Ed.2d 633 (1982)); see also Kenworthy v. Conoco,
Inc., 979 F.2d 1462, 1469 (10th Cir. 1992).

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Affirmed

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