Adler v. Wal-Mart Stores, Inc.

ADLER, Plaintiff-Appellant, Darla STORES, INC.,

WAL-MART

Defendant-Appellee. 97-1026.

No. Appeals,

United States Court

Tenth Circuit. 18, 1998.

May (Robert Brentlinger

Richard P. J. Thomas Mary and E. Toomman with him on the brief), Inman, Biesterfeld, Flynn P.C., & Denver, CO, Plaintiff-Appellant. for (Kirk Murphy James J. R. McCormick brief), with him on the McCormick & Mur- P.C., phy, CO, Springs, Colorado for Defen- dant-Appellee. KELLY, BARRETT,

Before BRISCOE, Judges. Circuit KELLY, Jr., Judge. PAUL Circuit Plaintiff-Appellant appeals Darla Adler summary judgment granted from in favor of Defendant-Appellee Stores, Inc. on her Title VII claim for hostile work envi- ronment sexual harassment and her state claim for intentional infliction of emotional jurisdiction pursuant distress. We exercise to 28 U.S.C. 1291 and affirm.

Background began Plaintiff her employment at Loveland, Wal-Mart Distribution Center in Colorado, 12, July 30, on 1993. On October 1993, assigned she was position to a in the battery room of the depart- maintenance ment. Much of the work in the Center was performed forklifts, and Plaintiff’s position duties were to clean and explained Mr. fall of son also Zalaznik Wal- In the change forklift batteries. policy promoted to forklift mechanic. Mart’s sexual harassment and the seri- she ousness of sexual harassment—that he could assigned to the Shortly Plaintiff was after required be fired for such comments—and male and female department, maintenance apologize again Mr. Zalaznik to Plaintiff. maintenance, not in employees who were Mr. more disci- Larson considered severe floor, her. For in- began harassing on the pline inappropriate on this incident based stance, suggested that various forklift drivers employees were clock because both off the position she is a got the because Plaintiff parking from in the lot. Harassment woman, performed fa- have sexual and must stopped. Zalaznik then Mr. manager, maintenance Jesse vors Kirehmeier, position. get the harassed Plaintiff in vari- Other coworkers January Plaintiff this to In incidents, ous but Plaintiff either additional Earl but would Kirehmeier and Larson Mr. them, specifi- report did not cannot or recall names of harassers. not disclose the cally may or said to when what she have supervisor, Larson was her immediate Mr. anyone August about them. On hourly any authority without employee report, Plaintiff incidents occurred which did fire, hire, discipline employees. formally Ber- involving maintenance coworkers Matt complaint, Mr. Kirehmei- to her At Ray point, wick McFarland. one Mr. if managers area er notified all other Mr. a bottle Berwick and McFarland shook appropri- act forklift could not their drivers baby they said wanted powder her and department, ately in the maintenance powder day, her bottom. The same Plain- managers get have their would drivers played practical joke tiff on Berwick Mr. for maintenance. take forklifts poured and Mr. McFarland. She water employees floor then Harassment the foam seats their cart so that when apologized many employees stopped, and soaked, pants their were sat down events, Kirehmei- After these Mr. Plaintiff. pants day. had wet the rest of the weekly she was whether er asked Plaintiff day, Later Mr. on the that Berwick climbed and, having any problems until after the operating forklift that Plaintiff was and below, Plaintiff August 14 discussed events addition, leg her. wrapped his around everything told him fine. phone Mr. McFarland called Plaintiff from a 1994, January or a co- In December 1993 thought that and told her he Zalaznik, Plaintiffs, proposed Alan worker she fun in and that he wanted would be bed in some electrical work in her home to do in sex. parts her room to have meet later, dayA exchange for sex. or so Mr. oral call, and frightened After Plaintiff was thought he saw Zalaznik told Plaintiff he him. hid under a desk avoid her her in Mr. Kirehmeier’s office with head down, bobbing up insinuated that and and reported events to Mr. Plaintiff these job gotten by giving sexual she had her Larson, relayed to Mr. Kirehmei- them who reported favors to Mr. Kirehmeier. Plaintiff er, relayed them to the Person- who in turn Larson, who Mr. these incidents to Mr. had Director, day, a nel Bill Within Clauser. apologize Zalaznik Plaintiff. inter- Mr. and Mr. Kirehmeier Clauser Plaintiff, inter- and Mr. Clauser then viewed 1994, parking in the lot and off In March individuals, 'compiling ten some viewed about clock, Mr. Zalaznik hesitated walk investi- pages notes. In his twenty-seven laughed rain." and told him he Plaintiff un- previous 'of gation, Mr. Clauser learned melt, scoop if he and did she would wouldn’t Mr. reported by incidents of harassment responded grab- up. him Mr. Zalaznik Mr. and Mr. Clauser Berwick McFarland. making a lewd statement. bing his crotch and own about gained also information Plaintiff’s reported the ApltApp. at 82. Plaintiff including sexual- Larson, participation joking, in the in- parking lot to Mr. who incident In. gestures comments. ly suggestive gave Mr. Mr. Larson formed Kirehmeier. jok- particular, apparently her he warning, lodged a learned Mr. Zalaznik a verbal how she ing coworkers of Mr. Lar- in his file to that effect. discussions document 670 (3) conduct; up

could set Mr. Kirehmeier on false sexual harassing their and Wal-Mart’s charges paid if to do so. adequate, although remedial action was she later suffered harassment others. Plain- investigation, As a result of the Mr. tiff also contends that the district court erred given “Step McFarland was what is a called granting summary judgment on her inten- disciplinary One” in Wal-Mart’s scheme. tional infliction of emotional distress claim potential warnings There are four verbal concluding preempted the claim StepA Step short of a One. One is a written Compensation the Colorado Worker’s stat- coaching given record. Mr. Berwick was a ute. Three, Step paid one-day suspen- which is a day” during sion—a “decision which the em- Discussion ployee considers whether he she wants the Summary Judgment I. job, plan a and submits written corrective only discipline return to work. This is the grant We review the of summary Four, Step Wal-Mart’s short of scheme judgment de novo applying the same stan which is termination. Mr. Berwick’s disci- dard as the district court embodied Rule pline initially was more severe because he 56(c). Sherrill, See Buchanan v. denied the events. Ms. given Adler was 227, 229 Summary judg Step One for her actions. Harassment from proper ment is if the movant demonstrates Mr. Berwick Mr. McFarland then genuine there is “no issue as to stopped. material fact” and that it is “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 9, 1994, employee On November an re- 56(e). standard, In applying this we view the (because ferred to in Larry the record as factual record and draw all reasonable infer name) Plaintiff cannot his full recall ran his ences favorably therefrom most to the non hand Plaintiffs back down to the tailbone. movant. See Matsushita Elec. Indus. Co. v. when; specifically She cannot recall but on Corp., 574, 587, Zenith Radio 475 U.S. reported November she this incident. On (1986); S.Ct. L.Ed.2d Hirase- 12, 1994, Runyon November Steve ran his Communications, Inc., Doi v. U.S. West hair, fingers through touching Plaintiffs Cir.1995). An issue is neck, attempt head to talk her out “genuine” if there is sufficient evidence on taking his forklift. On November each side so that a rational trier of fact could Plaintiff these events to Mr. Larson way. the issue either resolve See Anderson and Mr. Kirehmeier. Mr. Clauser inter- Liberty 242, v. Lobby, 248, 106 477 U.S. Runyon viewed both Mr. Larry and a Medi- 2505, (1986). S.Ct. 91 L.Ed.2d 202 An issue na, thought Larry to the harasser. Mr. of fact is “material” if under the substantive Runyon admitted his conduct and Mr. Clau- proper disposition law is essential to the of ser him counseled on Wal-Mart’s sexual party the claim. See id. If a that would policy and documented this ac- persuasion bear the of burden at trial does tion, Runyon’s personnel in Mr. file. Mr. not come forward with sufficient evidence on incident, any Medina denied and Mr. Clauser prima case, essential element of its facie anyone was unable to find who could corrobo- all concerning issues all other elements of the rate Plaintiffs account. Mr. Clauser never- any claim and defenses become immaterial. opportunity theless took the explain to Wal- Catrett, Corp. 317, See Celotex v. 471 U.S. policy Mart’s sexual harassment to Mr. Medi- 322-23, 2548, 106 S.Ct. 91 L.Ed.2d 265 na. day, Plaintiff left work the taking next a (1986). If genuine there is no issue of mate 19, leave of absence from November 1994 fact, rial we next determine whether the 4, 1995, January until resigned. when she correctly district court applied the substan appeal, On Plaintiff contends the district Hirase-Doi, tive law. See 61 F.3d at 781. court in granting summary erred judgment on her Title VII hostile work environment The movant bears the initial bur (1) by claim concluding that: making prima Wal-Mart den of facie demonstration of knowledge lacked unreported of incidents of the genuine absence of a issue of material (2) harassment; perpetrators repeated no fact and judgment entitlement to as a matter

671 323, Celotex, 106 district and circuit courts. Wal-Mart carried 477 at law. U.S. of See production its of on initial burden doing, a that will In so movant S.Ct. judgment, taking each of at incident harass- persuasion trial the burden of not bear complaint alleged ment and demon- claim. negate the nonmovant’s need not strating with numerous references to at- 325, a movant at 106 2548. Such id. S.Ct. either tached exhibits Wal-Mart lacked prima sim may its facie demonstration make actual or constructive notice incident a lack of out to court ply pointing it adequately responded or that thereto. on an essential for nonmovant evidence argue appeal than Rather her re- the nonmovant’s claim. See id. element of sponse adequate carry to this motion was If the carries this initial movant specific her burden to set forth facts demon- burden, bear the the nonmovant would fact, strating genuine issue of material simply persuasion may trial burden of at argues Plaintiff that the court district erred upon shifts to pleadings; rest its burden specific arguments based on facts and .not beyond pleadings go the nonmovant reviewing After brought attention. specific facts” that would be and “set forth response—from perspective Plaintiffs in the event of trial evidence admissible court, and in accordance with district trier of could find from which a rational fact construing Rule 56 and the cases it—the 56(e); see for the nonmovant. Fed.R.Civ.P. propriety summary judgment against Fed’n, Lujan 497 U.S. v. National Wildlife readily apparent. 3177, 871, 888-89, 110 111 L.Ed.2d 695 S.Ct. Although length of the motion mate (1990); Celotex, 324, 106 S.Ct. 477 U.S. certainly dispositive, telling rials is it is Anderson, 2548; S.Ct. U.S. submitted, response this case. Plaintiff this, accomplish the facts must be 2505. To motion, approximate summary judgment affidavits, deposi identified reference ly pages argument on three and one half incorpo transcripts, specific exhibits tion element as to which Wal-Mart essential Coca-Cola rated See Thomas therein. Wichita demonstrated an absence of evidence—the Co., ttling Bo to inci inadequacy Wal-Mart’s denied, Cir.), U.S. 113 S.Ct. cert. dents of which it had notice. This was the (1992). Thus, although 121 L.Ed.2d 566 only argued by ground sum novo, that review our is de we conduct review mary judgment on the hostile work environ perspective of the district court at sexual harassment claim. Plaintiffs ment ruling, ordinarily limiting the time it made its only made seven references to at discussion adequately our review the materials materials, including only reference to tached brought the attention of the district court eight Plaintiffs pages two hundred-and- parties. deposition, ninety-page and none already in the the multitude of materials gives Plaintiff insufficient attention these, explained appeal None of detail procedural posture to the record. req below, that a trial was demonstrated important policies to the furthered eonclusory allegations Plain- relationship the The governing rules the between uired.1 ” this v. expecting on its assessment of record.’ Mares 1. The dissent criticizes us for Plaintiff 492, Co., summary Poultry judg- ConAgra F.2d 494 2 carry her shifted 971 n. burden 1992). (10th purely own See Dissent Cir. from the dissent's ment in her motion materials. Aside ignores employers’ legal argument The the at 679-680. dissent's criticism for a stricter test of harassment, burden-shifting apply analysis we responses are to when which we address be 56(e) low, summary judging judgment arguments Rule motions. fail because the dissent's factual depend upon improper direct to focus on the nonmovant’s us assessment 'of Celotex this prima Co., Boeing once met its submission the movant has 112 the See Aramburu v. record. Cir.1997) ("We production. 1398, (10th facie of See Fed.R.Civ.P. burden the 1402 view F.3d Celotex, 322-23, 56(e); U.S. at 106 S.Ct. light 477 in a most and draw inferences evidence consequence this 2548. The natural shifted party opposing judg the favorable to is, production ment, nonmovant party identify burden sufficient evi but that must course, produce. nonmovant must require submission of dence which would Langley County, jury.”); v. 987 apparent misunderstanding case to a Adams dissent’s "The 1473, (10th 1993); v. impact 1476 Cir. Williams ‘has F.2d these burdens an obvious and critical 672 verified, complaint, although

tiffs are of party’s evidence and make a case for it. See help Thomas, carrying 1025; Downes, little her burden under Rule 968 F.2d at 587 F.2d 56(e) conclusory arguments as are the (quoting at 471-72 Bushman Constr. Co. v. 56(c), (e); Conner, 888, (10th brief.2 R. P. See Fed. Civ. Celo- 307 F.2d 892-93 Cir. tex, 324,106 2548; Thomas, 1962)). 477 U.S. at S.Ct. 1024; Smith, Conaway 968 F.2d at v. 853 short, carry the nonmovant must 789, 792-93 burden timely district court in a 56(e) pursuant fashion to Rule and Celotex or surprise It should be no 56(f). explain why pursuant it cannot to Rule Plaintiffs inadequate given (f). 56(e), Otherwise, See Fed.R.Civ.P. complexity presented. Indeed, of the issue acts, act, nonmovant or peril. fails to at its requirement specifi the nonmovant The burden is not an onerous one for the cally reference facts in its motion materials case, nonmoving party in each but does not special importance and the record is of in an any point shift from the nonmovant to the employment discrimination case. Unlike the district court. See id. accident, archetypical automobile these cases typically involve numerous incidents over II. Hostile Work Environment Sexual time, long periods of numerous documents Harassment (including policies, handbooks, elaborate argues Plaintiff that she was sub manuals), lengthy depositions of the jected to sex discrimination at the Wal-Mart plaintiff, supervisor, managers, fellow em Distribution prohibition Center. Title VII’s Thus, ployees, physicians. where the employment discrimination based on sex present specific burden to such facts ref encompasses hostile work environment sexu erence to exhibits and existing record al harassment. 42 § U.S.C. 2000e- below, adequately was not met we will not 2(a)(1); v. New Mexico Correc Hirschfeld failing reverse district court for to uncover (10th 572, Cir.1990). Dep’t, tions 916 F.2d 575 Celotex, 323, 106 them itself. See 477 U.S. This harassment occurs where con “[sexual] 2548; Anheuser-Busch, Barge Inc., S.Ct. v. duct purpose has the or effect of unreason (8th 256, Cir.1996); Thomas, 87 F.3d 260 ably interfering with an individual’s work 1024-25; Beach, F.2d at Downes v. 587 F.2d performance creating intimidating, hos (10th Cir.1978). tile, or working offensive environment.” ease,

Consider that in Bank, Vinson, aside Meritor Sav. F.S.B. v. twenty-six from the pages 57, 65, of evidentiary ma U.S. 106 S.Ct. 91 L.Ed.2d 49 Plaintiff, (1986) terial submitted 1604.11(a)(3) there were al (quoting 29 C.F.R. ready (1985)). approximately eight pages hundred claim, To form the basis of a text in the record. district court has sexual harassment sufficiently “must be se discretion go beyond por pervasive referenced vere or ‘to alter the conditions of materials, tions of these required is not employment [the victim’s] and create an abu ” Downes, to do so. See 587 F.2d at 472. If working sive environment.’ Id. at otherwise, (alteration the rule were the workload of the S.Ct. 2399 original) (quoting district courts would be Dundee, City insurmountable and Henson v. summary judgment rarely Cir.1982)). granted. would Based on totality Furthermore, although circumstances, this court has discre per environment must be broadly tion to more review the record on ceived both subjectively and objectively as we, appeal, courts, like the district have a abusive. See Sys., Harris Forklift limited and neutral role in 17, 21-23, the adversarial 367, 510 U.S. 114 S.Ct. 126 process, wary and are becoming (1993); of advocates L.Ed.2d 295 v. Smith Norwest Fin. who comb the previously (10th record of Acceptance, 1408, available 129 F.3d 1413 Cir. Rice, 177, (10th Cir.1993); Mares, 983 F.2d 179 because have "the same force and effect as 494; Thomas, 971 F.2d at 968 F.2d at 1024-25. Regardless an affidavit.” Dissent at 680 n. 2. of form, their conclusory. the statements remain suggests 2. The dissent that the statements in complaint Plaintiffs verified conclusory are not

673 omitted) (citation omitted), 1997). quotation on the marks dispose of this claim based We filed, 66 rendering petition the cert. U.S.L.W. 3137 liability, employer of absence for (1997). have also said in this context envi- We presence of a hostile work issue “ employer negligence ‘failing ap- that is to rem purposes of for the immaterial ronment. Kimble, 1073, prevent a edy or hostile or offensive work 1 peal. v. F.3d See Jensen Cir.1993). management-level (10th of which em environment 1080 knew, in ployees or the exercise of reason ” Liability Employer A. Hirschfeld, able' care should have known.’ (quoting F.2d 577 EEOC v. 916 at Hacienda Supreme in Mentor declined Court Hotel, Cir.1989)); 881 F.2d 1516 liability” employer rule on a “definitive issue 1604.11(d).3 § see 29 C.F.R. This is not de harassment, that for but observed sexual liability according to rivative the doctrine of “employer” in Title definition Congress’s superior, liability respondeat but direct for “agent” employer. of an any includes VII Hirschfeld, negligence. See 916 F.2d 577 72, 106 Meritor, (citing 477 S.Ct. 2399 U.S. employer only potentially is n. 5. Because an 2000e(b)). § 42 The Court concluded U.S.C. pre negligence remedying liable for in in Congress based on this definition venting negligently harassment of which it agency princi courts to “look to tended the discover, failed to courts must make two Congress Id. ples in this area.” guidance for first, employer’s inquiries: into the actual or some concomitantly there be intended harassment, knowledge constructive employers’ responsibility for sexual limits second, employer’s adequacy into the employees. by its See id. preventative responses remedial and Mentor, has this court In accordance with actually constructively known or harassment. drawn from identified three alternative bases employer agency holding for an principles Knowledge 1. work environment sexual liable for hostile employer only obligated is An Co., Hicks v. Rubber harassment. See Gates respond actually it to harassment which (10th Cir.1987). 1406, 1417-18 833 F.2d knew, or in the exercise of reasonable care (1) are are where acts committed These known. id. at 577. Actual should have See acting scope of employee “within the an knowledge be most will demonstrable (2) employment”; where [his her] or plaintiff cases where has (3) reckless; employer negligent or or employees. management-level purported to or to employee act where Inc., USAIR, Swentek v. speak employer and there on behalf of (4th Cir.1987). Regarding constructive apparent authority, or the upon was reliance many have knowledge, held courts agency was aided relation. harasser prop can pervasiveness of sexual harassment (Second) Agency (quoting Id. Restatement See, knowledge. erly lead an inference of (2)(d) (1958)). 219(1), (2)(b), § & Co., Weyerhaeuser 903 F.2d e.g., Baker v. liability employer The basis for (10th Cir.1990); Swentek, negligence alleged in this case is Wal-Mart’s Dole, 558; 709 F.2d F.2d at Katz v. allowing employees engage fellow however, is, appli mere This theory this sexual harassment. “Under highly negligence cation of the standard: liability, plaintiff must establish employer should, in the exercise pervasive harassment employer had constructive that the actual or care, by manage discovered reasonable knowledge of hostile work environment employees. ment-level adequately to notice of respond but did not Potash, knowledge judging Wal-Mart’s Eddy the harassment.” Harrison (internal (10th Cir.) case, 1437, 1444 of harassment fall the incidents ees) have known of con- guideline knows or should EEOC This slates: duct, that it took immediate unless can show respect em- to conduct between fellow With appropriate action. employer responsible acts of corrective ployees, (1997). 1604.11(d) workplace where the sexual harassment 29 C.F.R. (or employ- employer agents supervisory (1) those categories: supervisor into two which Plaintiff became a who did nothing.” II added). reported ApltApp. Larson or Kir- (emphasis to either Mr. Mr. at 773 This not (2) chmeier, both, only carry or and those which Plain- help did not to Plaintiff’s burden report, tiff or which may either did not she on judgment, but bordered on the which reported respecting have she could frivolous. content, date, recipient. or any not recall argued Plaintiff also Regarding category, Mr. the first Kirchmeier knowledge had incident in an which Mr. management-level employee was a of Wal- McFarland made a sexual comment manager Mart in was maintenance that he break room in presence of Mr. Trauer hire, fire, authority formally and had to and nicht. If hourly Mr. Trauernicht were a discipline employees. Mr. Larson was a low- time, supervisor at that Plaintiff would have supervisor, management-level level but also argument had an obliged that Wal-Mart was employee purposes for our because he was respond incident this but did not. “supervisor” authority titled and had some Plaintiff, however, specify not did for the Plaintiff, many coworkers, over her district court when this incident occurred or reported Kirchmeier. to Mr. See 29 supervisor. when Mr. Trauernicht became a 1604.11(d). Thus, C.F.R. the incidents of Aplt.App. See I. at 238. She therefore made which Mr. Plaintiff told either Kirchmeier or only unsupported allegation an and failed to Larson, both, put Mr. Wal-Mart on actual carry point. her this Regardless, burden on notice triggered obligation Wal-Mart’s our review of shows the record that she does respond. category, this incidents not recall when incident occurred or

viewing light the evidence in most favor- supervisor, when he became a nor does the Plaintiff, able to she adequately which any at place record show when he became a brought to the attention district court supervisor. January were: the 1993 and December employees, regarding incidents floor the De- appeal Plaintiff on argues that she January cember 1993 or in- incidents reported Schwartz, to Jeff harassment an Zalaznik, volving Mr. March parking lot hourly supervisor of her department. outside incident, incidents, August 14 and the Plaintiff did for the reference district court analyze November We incidents. ade- deposition her evidencing complained she quacy responses Wal-Mart’s these inci- Mr. Schwartz about Mr. Berwick and Mr. dents below. McFarland, ApltApp. see I. at but she

In category are second various addi deposition testimony stated also in her tional incidents of harassment which Plaintiff she exactly did not “remember when or what alleged complaint. in her Viewing verified said,” ApltApp. I at 240. As noted most light evidence favorable to above, quick and effective action was taken Plaintiff, occurred; we consider these have complained when Plaintiff to Mr. Larson. however, she failed to reference for the dis Vague, conclusory statements do not suffice specific trict court evidencing facts knowl genuine to create a issue of material fact. edge part of these on the incidents of Wal addition, argues appeal Plaintiff management-level employees. Mart’s Apart receipt her a Step disciplinary One action analyzed below, arguments she did reporting August after report any not of these additional incidents report made her reluctant to additional inci- Kirchmeier, 195-96, to Mr. Aplt.App. I at see dents. specifically Plaintiff did reference content, and she superviso cannot recall the evidentiary support material this argu- ry recipient, any complaints, or date of other ment in Regardless, the district court. all see, e.g., Aplt.App. I 237-40. at unreported incidents issue occurred argued below that Wal before this mid-September disciplinary Plaintiff Mart knowledge had respond allege failed to action. Plaintiff does the occur- January incident 1994 when rence of Mr. incidents all Zalaznik “tramp,” called September Plaintiff between because and the No- Trauernicht, Thus, was in front of according Mr. “who later vember incidents. to Plain-

675 Still, adequate perva- tiff, report showing ness. an of no to which were incidents there suppressed. may in an any could have siveness result inference of knowl- fear of retaliation Moreover, edge, informed that her Plaintiff failed to alert Plaintiff was the district for participation, specific support her not facts discipline was for court to sufficient to Baker, reporting finding. of harassment.4 a 903 such See (“[I]t only are [the is when so incidents] argues that Kirehmeier’s also Plaintiff Mr. numerous, egregious, and concentrated as to comment, Larson, that relayed to Mr. her up campaign a of that add to harassment might them problem if continued he fire employer culpable will be for failure to dis- explains report all failure to additional her ....”) going (quoting cover what is on Hunt- not of harassment. Plaintiff did incidents Corp., er v. 797 F.2d Allis-Chalmers below, re support argument this raise and (7th Cir.1986)). Instead, Plaintiff made Lyons in sulting waiver. See Jefferson only conclusory statements her verified Trust, Cir. Bank & 994 F.2d complaint about and brief below Wal-Mart’s 28.2(b). 1998); Regardless, R. 10th Cir. help carry to knowledge, which do not her remark, admissibility, is assuming isolated judgment. her burden on See support simply enough not a reasonable Thomas, 1024; Conaway, 968 F.2d at that Plaintiff feared retaliation. inference particularly F.2d at 792-93. This is true inference, record, could based on the Such where, here, plaintiff assuring as a Moreover, only speculation. the result of be management-level employee throughout compels con evidence a uneontroverted period everything relevant that was fine. gone Mr. had trary inference. Kirchmeier Aplt.App. I. See at 195-96. January managers Plaintiffs all area after protected her from further complaint and arguments None of the show Plain- above off the floor. He harassment from workers specific tiff came forward with sufficient facts Mr. Zalaznik and disciplined and Mr. Larson part evidencing knowledge on the of below required apologize him to to her after incidents, of Wal-Mart the second Furthermore, according complaint. March result, category. purposes As a for deposition testimony, knew Plaintiff her ruling summary judgment, Wal-Mart had would tolerate sexual harass Wal-Mart respond obligation no to these incidents. ment, her and Mr. Kirchmeier reminded periodically her that when he cheeked with Employer Response 2. job jeopardy.

her was not argues respond Plaintiff which it Finally, argues inadequately her ed Plaintiff that harassment pervasive knew should have This court has coworkers was so known. yet in to mea knowledge should enunciated definitive test that Wal-Mart’s be require employer’s response-to illogical It for sure an hostile work ferred. would only pervasiveness sexual harassment. rele this inference the level of environment princi overarching vant doctrine drawn to make out a hostile environment essential rule, liability agents knowledge for acts of ples If claim. this were Hicks, at 1417-18. employers negligence. in all eases be attributed to would Thus, of an pervasive- touchstone for the evaluation founded on hostile environment against why her harassment claim man- Respecting 4. our as to Mr. Clau- false sexual statement 490-93, Plaintiff, ager.” verbally charges II. R. cited Memorandum ser coached the dissent Support Defendant’s Motion for Sum- Brief in neglecting us standard of re- the relevant mary Judgment, no I R. Plaintiff referenced contrary unspecified as as evidence view well for of these bases evidence in contravention court,. 682- cited to the district See Dissent at coaching. verbal coached Plain- 683. Mr. Clauser testified he (1) told tiff because "she had one mechan- perceive significance, as the We do not ” butt,' (2) does, "[s]he had ‘cute had told ics he whether Plaintiff's comments dissent pant- wearing charges jest, wasn’t another associate she were about false (3) panties,” employer’s she she com- ies or didn’t wear discretion we think it within food, apparently choking discussing verbally on some matters mented when coach Plaintiff for yet,” inappropriate as material hu- that are even "I haven’t learned suck swallow (4) fabricating a at 683. mor. See Dissent she made comments "about response employer’s explained Meritor F.2d under and at 882. Courts have that employer Hicks An is simply indicating is reasonableness. not to a perpetrator the exis- strictly for all liable harassment of which it policy against tence of a harassment is usual- knew; actually constructively may See, Katz, ly or dis e.g., 709 insufficient. F.2d at charge obligation by taking appropriate its By responses 256. way example, preventative action. See remedial or Meri have been reasonable often held have includ- tor, 72, 106 at 477 S.Ct. U.S. prompt investigation ed allegations, of the proactive complaints, solicitation of schedul- Hirschfeld, compared employer’s we the ing transfers, changes and or oral written response those which our sister circuits warnings conduct, harassing to refrain from adequate, focusing promptness have found reprimands, warnings that future mis- Hirschfeld, See effectiveness. 916 F.2d in progressive discipline, conduct could result implied particular at stop 578. We including suspension and termination. See the page disciplined of the harassment Knabe, 413; Hirschfeld, 114 at F.3d 916 F.2d effectiveness, perpetrator evidences and not 6; Swentek, 558; at 578 & n. F.2d at 830 ed the of this our relevance fact sister Barrett, 427; Ellison, at 726 F.2d 924 (citing circuits’ eases. See id. at 578 Steele v. cf. (citing Compliance F.2d at 882 E.E.O.C. Inc., 1311, 867 Shipbuilding, F.2d Offshore (CCH) 615.4(a)(9)(iii), ¶3103, Manual (11th Swentek, at Cir.1989); 1316 830 F.2d at (1988)). 3213 558-59); Hinckley Dodge, Winsor v. cf. (10th Cir.1996). 996, 1002 79 F.3d The Ninth employer is, course, The explicitly Circuit has held that the reason obliged conduct; respond repeat employer response an ableness of is mea employer response and whether the next is ability stop sured the its may very depend upon reasonable well person disciplined. See the Ellison v. employer progressively whether the stiffens Brady, 924 F.2d 882 discipline, vainly or hopes that no re princi In accordance with these sponse, before, response or same as will ples precedents, court’s adopt and this we Repeat be may effective. conduct show the employed the test some our sister prior responses. unreasonableness On the circuits, asking whether the remedial and hand, hable, employer other is al preventative “reasonably action was calculat though perpetrator persists, a long so Ellison, ed to end the harassment.” 924 reasonable, response each It follows 882; F.2d see Boury Corp., at Knabe v. The employer that an required to terminate (3d Cir.1997); 114 412 F.3d Saxton v. perpetrator except a where termination is Co., Cir.1993); AT & T 535 only response reasonably would be Bank, Barrett v. Nat’l 726 Omaha F.2d calculated to the end the harassment. See (8th Cir.1984); Katz, 709 F.2d at 256. A (“While Hirschfeld, 916 F.2d at 579 n. 6. stoppage effectiveness, shows may egregious there be where cases such which in turn evidences such reasonable cal only option action employer, is the for an However, culation. this is not the sole factor reprimand, less a suspen serious eases brief to be considered. Because there is no strict sion, may or steps other remedial be suffi liability employer only respond and an must situation.”); remedy cient to see also reasonably, response may a be so calculated Knabe, 414; Ellison, F.3d 924 F.2d at though perpetrator might persist. even 882; Barrett, 726 F.2d at 427. Knabe, 411-12, See 114 F.3d at 412 n. 8. Unfortunately, In cases where some harassers effectiveness is not readily may simply change. a never as unfortu stoppage, evidenced we Just consider nate, may repeated a plaintiffs complaint, timeliness victim have to suffer employer delayed, employer whether harassment while an unduly progressively proportional disciplines perpetrator whether the to the to determine frequency just seriousness and whether harassment. he or she is such “hard a head” 414; Saxton, 535; id. at 10 F.3d at case. It is some consolation the victim for Hirschfeld, 578; Ellison, that, reasonable, responses prog- must nally, not made on to more seri- his comment was rapidly proportion ress more courts, workplace, clock in the but off the frequent clock and harassment. ous however, parking impor- rights, lot. These factors are must the victim’s balance particular alleged haras- tant because “whether action employer’s rights, and purely personal, incident rights. If rule to call establishes social our were ser’s discipline, employers relationship discriminatory inevita- without a would .em- excessive ployment other effect” or constitutes sexual face from the direction bly claims wrongful depends upon totality of process rights and the the violations of due Knabe, circumstances, including n. nature termination. See conduct and its context. See Discrimination Title Because Sex Under VII the Civil bring to the trial Plaintiff did not 1964, Amended; Rights Adoption Act of as to sufficient evidence estab court’s attention Guidelines, Interpretive of Interim 45 Fed. employer liabil the essential element lish (1980) (codified 25,024 Reg. at 29 C.F.R. responded to inadequately ity that Wal-Mart 1604.11(b). 1604.11); § 29 C.F.R. n incidentsof or harassment of which knew regressed period Mr. That Zalaznik over a contrary, should have known. On necessarily mean of three months does not responses to Wal-Mart’s record shows that initial, response .Wal-Mart’s unreason- was or con of which it had actual each incident reported able. This was first incident prompt and either knowledge structive were Zalaznik, involving Mr. so that Wal-Mart proportional to the seriousness effective or degree discipline would not know what incidents, frequency and therefore to enough would be severe deter him. Plain- reasonably calculated to end were any tiff failed to come forward with evidence responses utilized Wal-Mart’s harassment. response unduly that Mr. Larson’s was de- provided as exam all of measures above Thus, layed. Mr. Zalaznik ulti- although encourage ples the law em which aims mately required discipline more severe ployers to utilize. him, subjectively say we under deter cannot January, learned In after Mr. Kirchmeier response the circumstances that Wal-Mart’s floor, from off the of comments workers disproportionate to the to these incidents was names, Mr. Kir- disclose Plaintiff would not frequency of seriousness and the harassment discipline haras- chmeier could not individual Knabe, 114 and thus unreasonable. See handicap, re- Notwithstanding this his sers. seri- (holding at 413 under similar but more sponse the harassment from these ended counseling policy ous circumstances that on Aplt.App. I at 195. Plaintiff employees. See discipline adequate was re- without actual no forward with evidence that Wal- came sponse). responding unduly delayed in to her Mart incident, Following parking lot response prompt was the March report. Wal-Mart's response reasonably Mr. Larson’s ended the harassment it was effectiveness shows Aplt.App. I at 265. More- from Mr. Zalaznik. See the harassment. calculated end hope over, asking vainly the same disci- began Wal-Mart did Mr. Kirchmeier then effective, but made experi- pline was as before would be periodically Plaintiff whether she discipline progressively more severe. encing any problems. this even more severe dis- Mr. Larson considered January After December 1993 cipline inappropriate for-this incident be- Zalaznik, Mr. Larson from Mr. comments employees were off the clock and cause both apologize him to Plaintiff. Plaintiff ar- had lot, think this consid- parking in the and we response inadequate this was gues that response Mr. Larson’s eration reasonable. repeat Zalaznik’s conduct evidenced Mr. severe, prompt progressively more was in March. We do consider Wal-Mart’s indicates that it was and its effectiveness response inadequate for several reasons. reasonably harassment. to end the calculated was in re- Zalaznik’s March comment Mr. August 14 Plaintiff sponse teasing. His comment After to Plaintiffs harassment, began investigating temporally proximate prior Mr. Clauser not- to the incident, harassers day disciplined Fi- both later. within a but two three months report for all response lacking—either discovered incidents. After Wal- to this response, unduly delayed Plaintiff that Mr. Mart’s testified or ineffective. “stayed away Mr. Berwick and McFarland disciplined Runyon Mr. Clauser Mr. from look at I me and didn’t me.” See writing and counseled him on Wal-Mart’s addition, Aplt.App. Kir- at 278-79. Mr. policy. argues sexual harassment Plaintiff promotion chmeier offered Plaintiff a to fork- appeal Runyon light that Mr. made of her mechanic, part put lift her on a schedule day, complaint evidencing the next the inade- giving possible least contact Mr. her the quacy response. not, of Wal-Mart’s She did Berwick and Mr. McFarland. Wal-Mart’s however, allege this incident in her verified previously undiscovered inci- complaint, nor she refer district did court unduly delayed dents was not because Plain- allegation. evidence of Conse- complaints untimely. tiff’s were Wal-Mart’s quently, point view the district responses these prompt incidents were court, by Runyon stopped harassment Mr. they stoppage and the shows were reason- him, after Mr. evidencing Clauser counseled ably calculated end the harassment. response that Wal-Mart’s was reasonable. Moreover, came Plaintiff forward with no reports receiving After of the No support evidence that would an inference incidents, immediately vember Mr. Clauser that she would have suffered further harass- Medina, Runyon Mr. and interviewed Mr. by Runyon Mr. if ment she had worked at thought

who Larry was to be the involved Knabe, longer. the center See 114 F.3d at 9 incident.5 Mr. November Medina de 413-15. involvement, nied his and Plaintiff could not provide full alleged name her harasser. argues Plaintiff the district Mr. attempted Clauser to corroborate her applied wrong court by considering law her, story that Medina Mr. had harassed but responses adequate stopped because Mr. unable do so. Clauser went by harasser, disciplined even ahead counseled Mr. and Medina on Wal though others harassed the future. The policy, Mart’s sexual harassment but did Ninth Circuit has held that in measuring the discipline response otherwise him. This an employer response reasonableness of reasonable under the circumstances. See may court potential consider whether other Knabe, 114 F.3d 413. It would unrea be Ellison, harassers are deterred. sonable, See and callous toward Mr. Medina’s relevant, F.2d at 882. think We also this fact rights, law require for the Wal-Mart but Plaintiff came forward no discipline denies, evidence Mr. Medina for events he any district evidence, court that future which harasser Wal-Mart could not find es of, by, any knew or was at all pecially prior motivated complainant when the specifi cannot cally response. Moreover, Wal-Mart Without evidence identify the harasser. there is prior response no such nexus between a any subsequent evidence that there was and by others, Mr. later harassment later Although Medina. Plain harass only tiff is day, worked at the ment irrelevant to the adequacy center one more of the Thus, support prior response. there was no evidence to an infer based on the materi ence that she would have als to which suffered further Plaintiff directed the district attention, harassment Mr. had Medina she worked court’s all known harassment was Knabe, longer. any prior responses See 114 F.3d at 413-15. unconnected to Thus, Plaintiff has not met her set stopped burden to as a result Wal-Mart’s remedial specific forth showing facts preventative Wal-Mart’s actions. dissent, According

5. to the whether Mr. Medina have inferred Mr. Medina was the actual haras- was the actual harasser is an issue for the trier of ser was adduced. Genuine issues of fact must be light fact. See Dissent at supported In of Mr. Medi- more than a mere scintilla of evi- Anderson, na’s Plaintiff's failure recall the actual dence. See 2505; 477 U.S. at 106 S.Ct. denial. name, witness, Tools, any harasser’s and the lack of no Black v. Oil Baker jury evidence from which a reasonable could response, regardless of of the quarrel with- the nature does not seem The dissent n liability taken. This is without end. suggests that the requirement, nexus this ease' should be different be- this result Infliction of Dis- III. Intentional Emotional enough. can evidence cause circumstantial tress Claim Irrespective of what sort Dissent at 685. sufficient, argues have' been Plaintiff that her emotional could evidence preempted distress claim is not the Colo complete Plaintiff ease is record Compensation rado Worker’s statute. The evidence, any direct or cir- failed submit court, however, district rested cumstantial, any indicating that the nature ruling judgment alternatively ground on the any relation- prior response bore that Plaintiff came forward with insufficient harassment. ship whatsoever to future open liability. vicarious evidence dissent, the mere occurrence of For the brief, assertions, ing only two Plaintiff makes enough harassment is circumstan- the future record, to authority without citation or the inference respondeat tial evidence draw superior the doctrine of prior employer responses. protect inadequacy of should Wal-Mart. also She assertion, just again makes one without cita firing of each even the immediate Whether record, authority ques tion to or the that a actually have deterred future harasser would Argu tion of fact remains on this issue. factu- wrongdoers purely speculative, inadequately opening ments in the briefed impossible if did not ally the future harassers waived, 28(a)(6); R.App. are Fed. P. brief see Unless we hold know about those actions. Mgmt. v. Coleman B-G Maintenance of strictly to broad- employers failing liable for (10th Inc., Colo., 1199, 108 1205 Cir. F.3d disciplinary matters to their sensitive cast Callwood, 1997); v. 66 United States F.3d workforces, predicate cannot liabili- entire we (10th Cir.1995); 1110, 1115 n. 6 v. Gross addition, theory. In if the dis- ty on this Co., 1531, 53 Burggraf F.3d 1547 Constr. properly on this is drawn sent’s inference (10th Cir.1995), in and bald assertions briefs record, every involving so in case would be genuine that there are issues of material fact harassment, em- multiple incidents of summary to of are insufficient merit reversal pressed ployers prove be hard to the would 56(e); Thomas, judgment. See Fed.R.Civ.P. future harassers were not negative—that F.2d at 1024. 968 by prior employer responses.6 motivated AFFIRMED. sensibility taking of recognize We the mea- ¡BRISCOE, Judge, concurring and Circuit in prevent

sures to sexual harassment the dissenting: instance, although such measures are first 1604.11(f) § mandatory. 29 C.F.R. See disposition the of agree majority’s I Mentor, 73, (1997); at 106 477 U.S. S.Ct. claim, outrageous respectful- conduct the Larson, 2399; Employment K. 3 Lex Dis- ly from its affirmance dissent (2d ed.1997). The 46.07[4][a] crimination judgment in favor of Wal-Mart Adler’s test, however, employ- would make dissent’s claim. There is Title VII sexual harassment against support ers insurers future sexual harass- in the record for Adler’s substantial subjected to by employer claim that she was continuous ment coworkers after an initial Inc., employer’s Sys., find the reme- Harris v. The Winsor court does 6. The dissent cites Forklift 17, 20-23, plainly continu- based on U.S. 114 S.Ct. 126 L.Ed.2d dial action ineffective 510 harassment, (1993), Hinckley Dodge, ing continuing harass- v. but this was 295 and Winsor harassers, Cir.1996), by complained-of propo- previously ment 79 F.3d 1002 for employer reprimand did not or disci- should be on whether there which sition that focus Winsor, harassment, pline way. any 79 F.3d at 1002. were rather See recurrent incidents of disciplined stopping Significantly, the Winsor court cites than on effectiveness Hirschfeld parenthetically comparison, noting See at 684-685. Neither au- for harasser. Dissent " employer’s discipline thority supports proposition. stated The cit- that case the "of offender Winsor, expeditious rejects psychological inju- 79 F.3d and effective. ed discussion Hams Hirschfeld, & (citing F.2d at 578 n. ry as essential element of a Title VII claim. 20-23, Harris, 6.) added). (emphasis 114 S.Ct. 367. 510 U.S. multiple by recognized justice long sexual harassment court has the “ends of period employees of several months just over a are served when forfeiture of claims response to that Wal-Mart’s the harass- because of technical rules allowed.” Trav- prompt In ment was not and effective. States, Indemnity elers Co. v. United granting summary judgment, the district As we ex- a matter law that an court concluded as plained in Denver & Rio Grande Western employer’s measures are remedial effective Co., Railroad Co. Union Railroad Pacific stop, when cause individual harassers to (10th Cir.1997), 848-49 “case regard whether the are without measures interpreting [procedural] law rules is founded deterring by effective in future harassment upon policy deciding which favors cases on legal I disagree others. with that conclusion opposed dismissing the merits them summary judgment and would reverse because of minor technical defects.” entered favor Wal-Mart on Adler’s Adler’s sexual harassment claim is factual- sexual claim. ly supported in the evidence cited to the majority concludes Adler failed to car- reviewing In district court. district ry responding her burden in to Wal-Mart’s grant summary judgment, court’s we must summary judgment by failing for motion the factual view record and reasonable infer- disputed establish issue material fact. light ences drawn from it in the most favor- Adler, ruling against majority limits party opposing summary judg- able only record pages review the those Kaul, ment. 83 F.3d at 1212. The evidence specifically cited Adler the district Adler, is sufficient to establish the first wom- court, ignoring pages cited Wal-Mart department, subjected an in her to re- By refusing to the district court. consider curring sexual multiple Wal- Wal-Mart, majority evidence cited employees period Mart over a of several ignores party the burden of the moving Despite knowledge months. that the harass- summary judgment show absence recurring problem involving ment was a nu- questions material of fact. See Kaul v. Ste- workers, merous Wal-Mart to failed take phan, prompt reasonably action to calculated send complete Wal-Mart the deposi- submitted message a the to workforce as a whole that Adler, Berwick, McFarland, Clauser, tions of harassment not would be tolerated. specifically and Kirchmeier and the referred majority departs The from our standard pages district court to over from those by failing light review to view facts in the the them, depositions.1 parties spe- Between the by to overlooking most favorable Adler and cifically pages referred the court to 121 from evidence in her favor. in When viewed the depositions, exhibits, deposition several and ' Adler, light most favorable to the evidence complaint.2 assessing Adler’s In verified presented is sufficient to survive Wal-Mart’s summary Adler’s to motion the summary judgment. motion for judgment, we must consider at a minimum all specifically of the evidence cited to the manager expect- Maintenance Kirchmeier parties. district court both ed trouble employees from Wal-Mart when majority’s application rigid battery of a he selected to be techni- Adler a room me- procedural deciding cal to chanic in rule avoid a claim October 1993 because was she the contrary on purpose the merits is to the first in building female selected to work underlying procedure. modern rules of department. This his According and to co- ruling There no indication in the complaint court’s 2. The statements the verified are not, asserts, only pages specifically it majority conclusory looked at record allega- cited as the parties. complaint stating The District of Colorado no A has tions. verified facts that parties requiring particu- local rule to refer with be would admissible at trial and that are based larity portions plaintiff’s those personal knowledge to of the record on which has the same rely they support opposition purposes of or in to mo- force and effect as an affidavit for know, summaiy judgment. responding tions for all judgment. For we ato motion for Smith, complete depositions Conaway the court reviewed the Cir.1988). the record was not massive. time, company reported the Little, problems Larson incident people a had “lot worker job, to given battery because to Kirehmeier because he was unsure what was when she woman,” only and said the was a do since it occurred off the clock. Kirehmei- she job was “because she was got reason she er that Larson told Zalaznik to understood woman, “[kjnock must done some that she have and App. off.” at 700. Zalaz- stuff promotion.” somebody get favors'for given warning nik was not verbal but was started, after she floor App. 780-81. Soon formally up written because workers, drivers, distribution forklift company did occur on time. Adler testi- making pack began workers “rude break stopped making fied that Zalaznik sexual re- perform indicating that she had comments : marks to her. job.” Id. at 688. It can get the acts to did, Kirehmeier testified: “I stress again, reasonably and acts be inferred the favors department to the that we would not entire sexual in nature. Kirehmei- referred were behavior, conduct, accept inappropriate or of harassment stopped er the initial outbreak “I it anyone.” did continuous- comments supervisor of the fork- by announcing ly.” Kir- App. at 701. this shows While permit lift lift drivers that he would harassment, chmeier tried also to end bring their in for mainte- drivers vehicles perceived problem as a shows he recur- He continued. then nance if involving many employees. ring one being if she ha- regularly asked Adler efforts, Despite Kirchmeier’s Adler rassed. subjected to continuous harassment Zalaznik of- In December eoworker McFarland Berwick. She stated perform work at Adler’s fered to electrical 1994,” “continuously “[e]very through exchange home in for oral sex. him,” I time was around McFarland made receiving any reports of harassment denied comments, sexually App. 192- suggestive January, but Adler testified December “grabbed my and Berwick waist several supervisor it to immediate reported she her times as he has walked me.” Id. at 807. 1994, Zalaznik, in January Larson. Adler that Berwick and McFarland testified McFarland and Ber- presence coworkers both, times, mány anything “have taken wick, engaging in Adler of oral sex accused put them be- hammers broomsticks job. Zalaznik with Kirehmeier to obtain my name, legs, then call[ed] tween their suggestion to also made another crude sexual reasonably Id. It can handle.” stroke[d] Adler, January. According she Adler many inferred there too incidents were Larson again Zalaznik’s conduct to to Berwick and McFarland for Adler with reported it to Kirehmeier when he asked and of them. At some specifically recount all However, being her if she was harassed. Tony point, coworker she knew as another reports of Kirehmeier not recall harass- did her sexual toward made unwanted advances Adler, January. According Lar- ment in to deny her it if she told and told he would fire going Kirehmeier was to all son told her anyone. along, Adler get if did not and tliem report became reluctant guys told “most of the in the mainte- Adler Kirehmeier.3 App. about the department,” at nance by and ongoing harassment Berwick McFar- made another March Zalaznik land, she had and named several coworkers park- suggestion to Adler in the crude sexual supervisor cleaning also told told. She tramp ing after work. He called her a lot ongoing harassment. about report Schwartz day at work. Adler did next reported the constant harassment initially told She comments to Larson and was supervisor he became a Trauemieht after nothing there was Wal-Mart could do about com- witnessed one of the it not occur on and Trauernicht the harassment because did important majority, hearsay problem not for truth I no The statement 3. Unlike the see It is immaterial whether the fact that Larson with statement. the matter asserted but for job Adler, actually told Larson that Adler's thereby making Kirehmeier statement made the jeopardy. was What is that Larson matters report reluctant harassment. job jeopardy. said her was in told her Kirehmeier by Although When ments Berwick. Adler could she encountered the two while she was occurred, exactly forklift, Berwick, driving when this not recall she a McFarland’s with encouragement, suggested they it was Trauernicht a su- knew after became have sex on on, pervisor wrapped she recalled worker the forklift. leg because another He climbed his her, surprised thrusting her he Trauernicht told was did around and made motions nothing majority against pushed departs her. him off. about it. Adler Accord- McFarland, by ing viewing our of review this evi- to Berwick Adler standard and started light by in a telling dence unfavorable to Adler and the forklift incident them had a she concluding present any fantasy having she did not evidence sexual about sex on a forklift supervisor body language that Trauernicht was a when he and her indicated she was inviting get heard comment. The determination of Berwick on lift with her. credibility weighing wrap and the are evidence McFarland stated Berwick did not his Adler, in reviewing summary leg not our function around as a described incident Kaul, judgment. joke, engage 1212. said that Adler and continued supervisor in horseplay by soaking Whether Trauernicht was when with them their cart review, he a question Contrary heard the comment was seats. our standard majority accepts material fact. sequence of events by as related Berwick and McFarland. The Adler testified that Larson a lot of “heard only horseplay soaking Adler admitted was by the comments” McFarland and least ’ their cart seats before the forklift incident. App. one comment Berwick. at 232. She up- Goeppinger Coworker Adler was testified testified, also “I’m sure I mentioned it [to day set him and told the incidents about August after the Larson] deal and I’m sure I frightened she was so she tried to before,” although mentioned it she did not hide. exactly recall when. Id. at Adler could exactly report- not recall what comments she Adler the incidents to Larson. ed, complained gen- but she recalled that she Kirchmeier also learned of the incidents and erally about sexual comments. “indicat- She Adler met with Kirchmeier and Personnel stop, ed that [she] wanted it to [she] Director Clauser. Clauser Adler described after demanding August gave more of ’94.” Id. at upset. serious and She a written majority 237. The Adler holds to an unreal- statement which described some of the earli- istically precise high standard of er recall and Berwick and McFarland as departs from our im- well August standard review as the 14 incidents. Clauser properly weighing this people. evidence and conclud- interviewed ten ing evidentiary has no value. Whether Following investigation, Clauser’s Adler supervisors ongo- Adler’s were aware of the 15, 1994, disciplined September ing question harassment was a of material coaching,” the “verbal lowest level of disci- Thus, fact. pur- the record established for pline practiced Wal-Mart, making in- that, poses judgment despite the appropriate sexual comments unrelated to knowledge supervisors many of three the August incidents for joking about 1U coworkers, nothing Wal-Mart did about the fabricating a against sexual claim constant, ongoing harassment until Adler for- Kirchmeier. Adler told Clauser she had reported mally culminating the incident on approached by been a coworker about fabri- 14. August cating a sexual harassment claim. The co- supervisor said, There was no at work on “Why you Sun- worker don’t do us all a favor Adler, day, August According 14. to the and Jesse out on take sexual harassment.” began responded, incident when “I you Berwick and McFarland Adler don’t think have baby shook a bottle powder enough money said, of her at and to do that.” The worker they going powder said were to you get her bottom. “How much do want?” or “We can got you on,” She back them by soaking enough their cart replied, to retire and she Adler, “No, telephoned get seats. McFarland telling you money.” couldn’t much her in parts App. to meet them the room for in light sex. at 491. Viewed most favor- frightened Adler, She was so able she tried hide. the evidence re- shows Adler Moe, Runyon, joke. generally known as harassed exchange a Clauser garded the by running jest fingers felt Adler on November his probably conceded it was through hair and neck justified he her back her discipline was because considered joke falsely accusing discussing while service the forklift he for inappropriate it about operating. was sexual harassment. someone of review, and Adler incidents to Lar- Contrary to our standard two son, prepared report, a contrary to the district she written and Clau- to evidence cited court, investigated. disciplined record ser majority states the Medina was shows no participated jok- independent because there was Adler witness Clauser found McFarland, presum- independent incident. There was an wit- ing with Berwick Runyon Runyon ness to the also ably horseplay and sexual banter. McFar- incident “coached,” August participated in on 14. admitted the incident. He was land said Adler i.e., up, punished majority also states Clauser learned written rather than with a The later, step. days disciplinary A few Kir- “discussions” with coworkers Adler had problem chmeier told Adler the been making about a false sexual had solved, Kirehmeier, overlooking depo- Runyon against but on November came claim working court over he cited to the district show- to where Adler was and said pages sition run fingers through would love to his her ing even considered discussions Clauser Larson, hair jest. again.. She told who “made big baby, like a ... like was feel [Adler] [she] Clauser, by When interviewed Berwick de- making big App. a deal it.” Adler incident. McFarland admit- nied whole day went on leave absence that and never it, its ted some of but minimized seriousness a returned to work.4 She wanted different willingly participated. Ber- and stated Adler job at and Kirehmeier offered her disciplined for the wick and McFarland were position, lower-paying rejected. which she August given 14 incidents. McFarland inappro- purposes for The record for eoaching/reprimand” “a verbal established remarks, giv- summary judgment subjected priate sexual and Berwick was that Adler “decision-making one-day paid sexually to a day,” en a hostile work environment gestures, suspension inappropriate sexual her eoworkers. Because the harassment was incidents, supervisors, safety peers her rather her dishonesty about the than Eddy Potash, violations. Harrison (10th Cir.1997) inapplicable. reasonably discipline It can be inferred the only liability basis for is under Restatement widely compa- imposed was not known (Second) 219(2)(b). § Agency See Hirase- ny they because not even Adler knew had Communications, Inc., 61 Doi v. West U.S. disciplined. Although been Berwick and Generally, an stopped harassing her after McFarland Clau- employer is liable for sexual harassment investigation, ser’s Adler still did not know at peers employee’s management an when deposition discipline what the time of her agents, supervisory employees, level em It could also be reason- had received. ployees knew or should have known of ably discipline inferred the was ineffective prompt take harassment and failed to deterring potential harassers because Medi- effective remedial measures. See 29 C.F.R. by inap- na Adler on November harassed 1604.11(e); Hirase-Doi, 61 F.3d at 783. propriately running his her hand down back addition, employer charged will be trying convince tailbone while numerous, knowledge egregious, and con adjust go faster. The his lift so would up incidents add to a cam centrated that' majority light in a views this incident unfa- paign of harassment. See id. 783-84. Adler, was suggesting vorable to Medina only portions specifically cited thought to be the harasser. This is a the record court evi- question trier fact. to the district contain substantial for the Coworker assertion, deposition pages Contrary majority’s specifically cite to the to the the evi- these report court, Runyon’s dence of reaction to Adler's was district defendant did. Although cited did to the district court. Adler 684 (7th reported Cir.1994);

dence that in addition-to the harass- 1007 Waltman v. Interna workers, (5th by Co., ment and floor Paper Zalaznik Adler tional Cir.1989); 875 F.2d 468 subjected Dole, eight-month to an campaign of Katz v. 709 F.2d 251 by employee continuous sexual harassment Berwick subjected When an is recurring Although and McFarland. Adler by coworkers, did not sexual multiple harassment in report August, make a formal until cident-by-incident there was measures partic aimed at evidence cited to the district court that may Wal- ular harassers stop sufficient it or Mart either knew about should have by harassment those individuals but insuffi prompt known about it and failed take cient to deter others. stop Measures that remedial action. Adler testified that some- some harassers but do not deter others are incidents, August time 14 before the Adler small comfort to the victim. Rather than supervisors, including told three Wal-Mart focusing on given whether a individual recur Larson, ongoing victim, harassment. rently Some of harassed the the focus should by supervisors. the incidents were observed be on whether the subjected victim was The ongoing harassment was widely recurring also acts of harassment. See Harris v. among known Inc., her coworkers Sys., 17, 20-23, because she 510 U.S. 114 Forklift told them about it. It reasonably could (1993); Winsor, be S.Ct. 126 L.Ed.2d 295 campaign inferred that of harassment Particularly 79 F.3d at 1002. multiple in a constant, was so long, situation, went on so and was so harasser an reasonableness of widely reasonably known that alert manage- employer’s remedial depend measures must should, ment have learned about it ability before their stop past both the harass August 14 something and'should have done potential ment and deter harassers. See El stop it before then. Brady, lison v. 882 Cir. 1991). presented Adler support also evidence to theory that Wal-Mart’s management after Wal-Mart had actual knowl- learning of the harassment inappropri- edge of the first two outbreaks of harass- employer’s ate. An appropriate action is against ment by Adler—the harassment floor “fully when it remedies the conduct without by workers and Prompt Zalaznik. by action adversely affecting the terms or conditions of stopped Kirchmeier by the harassment charging party’s employment in some floor workers. Although Zalaznik stopped manner,” example, by transfer to a" harassing less counseled, Adler after he was man- Compliancé desirable location. EEOC Man- agement by should have known this time that (CCH) 615.4(a)(9)(iii),3103, (1988). § ual harassment of problem Adler was not a Employers duty express have a to' strong just particular one coworker. Management disapproval of sexual harassment and to de- knew bringing a female into the maintenance velop appropriate sanctions. See 29 shop problems C.F.R. would cause and it knew more 1604.11(f). than one coworker had harassed Adler. The initial measures that stopped by employee sexually When an by harassed floor workers and Zalaznik were not coworker, appropriate one it is to measure in deterring Moreover, effective others. employer’s effectiveness of the remedial Larson deterred Adler reporting fur- measures their effect on that one cowork- ther harassment Kirchmeier implying er. reasonably Measures calculated to end she would be if fired she did things not work that coworker’s harassment are sufficient. out with Zalaznik. Berwick and McFarland Hirase-Doi, 61 F.3d at 786. Frequently, obviously, were not-deterred and committed however, multiple there are harassers. the most serious engaging Where, here, one previ- woman enters a eight-month campaign of constant harass- ously workplace, all-male it is not uncommon against ment Adler. large segment for a of the male workforce to sexually.harass See, the female newcomer. management When finally took action after e.g., Hinckley Dodge, Winsor v. formally F.3d Adler had August (10th Cir.1996); incidents, Carr v. Allison Gas Berwick and McFarland were dis- Div., Turbine Corp., General Motors ciplined, disciplined Adler was as well. I it is for the trier fact to and McFar- conclude of given Berwick discipline The widely not determine whether Wal-Mart knew severe and was land was not employees. ongoing Not even known harass- among the should have known they disciplined. prompt Al- ment had been and failed take and effective Adler knew again entry though measures succeed- measures. I would affirm the the remedial remedial particular summary judgment outrageous harassment on the con- stopping ed in harassers, not effective in measures were duct claim and reverse the district court’s and Run- deterring entry because Medina judgment others the sexual Moreover, the yon later harassed Adler. harassment claim. report of harassment to Adler’s Runyon reasonably not cal-

Medina and Runyon regard-

culated to end harassment. joke, Larson the matter as a indicated

ed big deal it. making

to Adler a she course, may, of

Motivation and causation proved by circumstantial evidence. See

Ready v. National La Mixed Concrete Co. Board, NATIONAL LABOR RELATIONS bor Relations Petitioner, BOARD,

(10th Cir.1996). however, majority, testimony Runyon require would direct v. knew of and were and Medina I.W.G., INC.; Con-Bru, doing Inc. business responses by Wal-Mart’s to the motivated Sprinkler, Inc.; B. as AAA Fire Robert Berwick and McFarland individual; Gordon, Arlene, prove a between their harassment and nexus doing Suppression, AAA Fire business as prior responses to harassment. This Inc., Respondents. rarely evidence is available kind direct case circumstantial evi discrimination Sprinkler Fitters Local Road Union Loveridge, Daniel v. dence sufficient. U.A., AFL-CIO, Intervenor. 1472, 1476 The circum was sufficient to establish stantial evidence GORDON, Petitioner, B. Robert purposes summary judgment that the for discipline given to Berwick and McFarland Runyon and Medina from ha did deter NATIONAL LABOR RELATIONS rassing After Adler. months of harassment BOARD, Respondent. workers, by multiple did not send Wal-Mart Sprinkler Fitters Local Union Road message to the workforce U.A., AFL-CIO, Intervenor. these circum would not be tolerated. Under stances, reasonably it can be inferred 96-9548, 96-9550. Nos. Runyon Medina were not deterred Appeals, States Court United prior remedial measures. Wal-Mart’s Tenth Circuit. August 14 report After inci- dents, justifiably management could have May fired and McFarland harass- Berwick ment, message thereby sending a clear to the not tolerate

workforce that Wal-Mart would that,

sexual Short of harassment. gathered the workforce

could have at least

together them sexual harassment and told

would be tolerated and that individuals sexually harass

who Adler continued subject discipline, including ter-

would be

mination.

Case Details

Case Name: Adler v. Wal-Mart Stores, Inc.

Court Name: Court of Appeals for the Tenth Circuit

Date Published: May 18, 1998

Citation: 144 F.3d 664

Docket Number: 97-1026

Court Abbreviation: 10th Cir.