Bertsch v. Overstock.com
2012 U.S. App. LEXIS 14095
10th Cir.2012Background
- Bertsch appeals from grant of summary judgment to Overstock on hostile work environment and retaliation claims, and denial of leave to amend for a disparate-treatment claim under Title VII.
- Latimer allegedly subjected Bertsch to misogynistic comments and demeaning conduct; Bertsch and others claimed frequent harassment.
- In Feb 2004, Bertsch and Latimer received written disciplinary notices for contributing to a hostile work environment; Bertsch was told to treat colleagues fairly.
- Bertsch sent apologetic emails and submitted a corrective action plan; Overstock described her as contributing to departmental contention.
- Bertsch was terminated in May 2004; Overstock characterized the reasons as poor performance and disruptive behavior; Utah Labor Commission ruled in Bertsch’s favor in 2007.
- Bertsch filed federal suit in Jan 2010; district court dismissed hostile environment and denied leave to amend, but allowed retaliation claim to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Latimer’s conduct created a hostile environment | Bertsch alleges pervasive gender harassment. | Overstock acted promptly and remedied the harassment after complaints. | Genuine issue of material fact on pervasiveness; but liability precluded by prompt remediation. |
| Whether Overstock’s remedial actions were adequate to avoid liability | Remedial actions were inadequate and the harassment persisted. | Investigated and disciplined Latimer; actions were prompt and sufficient. | Remedial action precludes employer liability; no continued harassment shown. |
| Whether Bertsch's retaliation claim is viable under Burlington Northern standard | Disciplinary actions and termination were retaliatory for her complaints. | Termination based on poor performance and behavior, not retaliation. | Material dispute over causation and pretext; genuine issue for trial on retaliation. |
| Whether Bertsch can pursue a disparate-treatment claim despite exhaustion rules | Disparate-treatment claim relates to Latimer’s discipline not previously raised. | Exhaustion required; claim not timely in EEOC charge; relation back not available. | Claim dismissed for lack of administrative exhaustion; no jurisdiction to hear it. |
Key Cases Cited
- Herrera v. Lufkin Indus., Inc., 474 F.3d 675 (10th Cir. 2007) (defines hostile environment standard)
- Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (Supreme Court 1998) (employer liability for harassment after notice)
- Adler v. Wal-Mart Stores, 144 F.3d 664 (10th Cir. 1998) (stoppage of harassment after discipline evidences effectiveness)
- Proctor v. United Parcel Service, 502 F.3d 1200 (10th Cir. 2007) (pretext and causal connection in retaliation claims)
- Haynes v. Level 3 Communications, 456 F.3d 1215 (10th Cir. 2006) (pre-Burlington standard for adversity; revisited)
- Simms v. Oklahoma ex rel. Dept. of Mental Health and Substance Abuse Services, 165 F.3d 1321 (10th Cir. 1999) (exhaustion as prerequisite to Title VII claims)
- Burlington Northern Santa Fe Ry. Co. v. White, 548 U.S. 53 (Supreme Court 2006) (disparate treatment retaliation standard: materially adverse action)
- Twigg v. Hawker Beechcraft Corp., 659 F.3d 987 (10th Cir. 2011) (burden-shifting framework for retaliation claims)
- Baty v. Willamette Indus., Inc., 172 F.3d 1232 (10th Cir. 1999) (evidence standards for harassment cases)
- Crumpacker v. Kan. Dep’t. of Human Resources, 338 F.3d 1163 (10th Cir. 2003) (analysis of harassment and retaliation standards)