*1 formula that uses the rigid mathematical departure of a as the standard
percentage justifi determining strength
for sentence”). specific required
cations
Rather, courts must consider the district 3553(a)
§ appro factors and determine an
priate upon specific sentence based Muñoz-Nava, See presented.
facts 1146. That is what the precisely
F.3d at Accordingly, court did here. we
district
give due deference to the district court’s vary upward
decision 18 months and
conclude that Defendant’s sentence was
substantively reasonable. See id. at 1149
(noting give that we must deference to
district courts in the extent determining variance). reasons,
For the foregoing we AFFIRM
Defendant’s sentence. NETTLE,
Renee Exendine
Appellant/Plaintiff,
CENTRAL OKLAHOMA AMERICAN COUNCIL, INC.,
INDIAN HEALTH City the Oklahoma Indian Clin
d/b/a
ic, Appellee/Defendant.
No. 08-6023.
United States Appeals, Court of
Tenth Circuit.
July *2 Brockman, Glass,
Scott F. Woodrow K. Ward, Stanley LLP, M. Ward Glass Nor- man, OK, for AppellanVPlaintiff. Gary Williams, Pitchlynn, S. Joseph Olin Pitchlynn Morse, Norman, Morse Ritter OK, for Appellee/Defendant. tribes, KELLY, to en- obligations ment’s trust BRISCOE
Before McCONNELL, and Alaska Judges. courage American Indians Circuit education, and pursue higher
Natives *3 having effect of positive to enhance the AND JUDGMENT* ORDER matters that affect Indians administer preference is McCONNELL, Indian tribal life. The Circuit MICHAEL W. group not as a racial granted to Indians Judge. enti- sovereign but as members of tribal Nettle, employee a former of the Renee history of Indian legislative ties. The (“the Clinic”), City Indian Clinic Oklahoma Congress’ reflects hiring Preference law repeatedly was harassed alleges that she that non-Indians would be at awareness complained and fired when she at work disadvantage in the IHS an rights filed a civil suit about it. She and the BIA. granted The was against the Clinic. Clinic http://info.ihs.gov/Infrastructure/ judgment on all claims. Ms. summary Infrastructure7.pdf. worked judg- and we affirm the appeals, 13, years (August eleven 1993 to about ment of the district court. 2003) Develop- as a December Child Community ment in the Specialist Clinic’s I. Facts Department. Op. Dist. Ct. 1. Services 1, 2004, January Ms. Nettle is a one-half Caucasian and From her termi- until American, year, job one-half Native a member of nation in of that November light- Special- Tribes. She is title was Native American Youth Delaware/Caddo Spe- skinned and sometimes mistaken for a R. 11. Development ist. As a Child cialist, Ms. Nettle testified that she Caucasian. Nettle’s duties included work- person “[b]y “light- counseling far” with the American ing with and Native services, family children, est skin color” in the R. although families their “most people and that to look at me was never licensed as a counselor. Dist. Indian, identifiably me as Op. don’t see 2. American Youth Spe- Ct. As Native cialist, 243. Indian.” R. Ms. Nettle worked for job “provide Ms. Nettle’s was to (“the City the Oklahoma Indian Clinic Health Prevention ser- Promotion/Disease Clinic”), “primary pro- whose function is to vices directed American Indian towards youth” responsible vide medical and other health-related ser- and she was for “men- health, to Native Americans.” R. 11. The tal substance abuse and social work vices Op. During service Dist. part issues[.]” Clinic is of the Indian Health Service Ct. Clinic, (IHS), her time at the Ms. Nettle received permitted by give which is law to evaluations, job positive and was never hiring preference for Native Americans. 12; subject disciplinary action. R. According to the Indian Health Service R. 112-16. She had called a “won- been website: to the Dist. 3.Op. derful asset” Clinic. Ct. purpose hiring preference The of this Indian in support participation self- Executive Officer at the Chief Clinic Hunter, government, to further Terry part the Govern- was who is Caucasian * cited, however, judgment binding prece- may persuasive order and val- This be for its dent, except R.App. of law P. 32.1 and under doctrines of the ue consistent with Fed. case, judicata, estoppel. res and collateral It 10th 32.1. Cir. R. American, part Native with tribal on October 2004. She checked off the Tribe and membership indicating the Kiowa boxes on the form that she was tribal affiliation the Delaware Nation claiming race, discrimination based on col- Tribe. Br. Aple. or, and the Caddo 6. His age. The text charge read pigmentation skin is darker than Ms. Net- that “Mr. Hunter would make comments 237-38. In her com- tle’s. tribes, about different and about those court, plaint before the district Ms. Nettle whose skin is lighter or darker than oth- that Mr. make said Hunter would “fre- ers. I and other employees are treated workplace comments about quent differently because of our tribe or skin *4 different Native American tribes whose color.” R. 390. The put document March lighter skin colors were or darker than 10, 2004 as the earliest date discrimination tribes,” sug- other Native American place took and October 20 as the latest. gested employees some were too Id. In March the Clinic had canceled also, R. 26. “white.” Mr. Hunter accord- youth activities of which Ms. Nettle was in Nettle, ing to Ms. said of her that “she charge. R. 163. Indian, thinks she’s but we wonder” and On November placed Ms. Nettle was “derogatory “on other occasions” made on pending “administrative leave an inves- statements about the Delaware tribe tigation” into two matters: a memo Ms. ‘they want to pretend [such as] and be ” Nettle had written on denying October 27 12; like Indians of browner skin.’ R. R. responsibility for a break-in at the Clinic Although 154. she knew that some of the offices, and whether Ms. Nettle had coun- might jest, comments have been in she still patient being seled a after directed not to. many
found of them offensive. R. 171. Op. Despite Dist. Ct. 7. having placed been Robyn Ms. Nettle also accused Sunday, leave, on administrative Ms. Nettle used a Officer, Operating Clinic’s Chief van that day Clinic same to deliver materi- making derisive comments Ms. about Net- als for a Clinic function. Id. Ms. Nettle appearance, saying tle and her at one point testified that she had been instructed that she wanted to fire “white Renee.” R. supervisor go her transport ahead and 13. And she asserts that patients 9; Aplt. materials. Br. R. 101. Clinic would call her the “white doctor.” 1, 2004, In a letter dated November Aplt. Br. 37. Nettle was informed that she had been In addition to the comments directed at fired, 1, 2004, effective November for “mis- her, Ms. alleges the Clinic conduct,” including her continuation of “removed several activities for which [she] “counseling patients being after given a responsible gave them to other directive to cease all individual counsel- this, employees.” R. 168. The reason for ing.” Op. Dist. Ct. 8. Ms. Nettle filed a alleges, she was because Mr. Hunter be- charge second alleging EEOC that she had lieved that her light skin and Caucasian been filing terminated retaliation for her appearance poor represen- rendered her a Charge. first EEOC R. 14. The Notice tative for the in the Clinic Native Ameri- of Discrimination the Clinic received for community. Aplt. can Br. 5. charge Ms. Nettle’s first was dated No- 5, 2004, days Ms. Nettle vember four after eventually Charge filed a the Clinic Nettle, Discrimination fired Ms. Equal Employ- suggesting with the that the ter- (“EEOC”) ment Opportunity Commission mination could not have been in retaliation Nettle, We review the dis- appeals. 9. Ms. Ms. Nettle Op. Dist Ct. charge. for the novo, applying the trict court’s decision de however, she had filed her testified that by the district legal same standard used employ- that an charge on October Dovala, court, McKenzie v. told her she would ee with the EEOC (10th Cir.2001). Summary judgment “immedi- Charge to the Clinic faxing genuine if there is no appropriate only day.” “that R. 285. ately” and fact and the mov- issue as to material against filed suit the Clinic judgment entitled to ing party is on November 2005. district court federal applying this matter of law. Id. “When original complaint, alleged R. 2. In standard, and draw we view the evidence discrimination, claiming that race and color therefrom in the reasonable inferences of Mr. Hunter and others the comments nonmoving par- to the light most favorable environment. a hostile work She created given “wide ty,” and the nonmovant in retalia- alleged that she was fired also controversy ex- prove berth to a factual Id,, filing charge. (citations omitted). her first tion for EEOC ists.” plead age Ms. Nettle did not dis- *5 original complaint, in her al- crimination Retaliatory Discharge II. had off the in her though she checked box argues that the court eventually con- Charge, EEOC and she finding in that she had not made a erred it. R. 191. She also later con- ceded retaliatory dis prima showing facie claim for race discrimination. ceded her charge. In her second filed EEOC R. But in her to the reply 394. Charge, Nettle said that she believed Ms. summary judgment, motion for Clinic’s against that she had been retaliated “for Ms. Nettle asked the court to allow her to activity my complaining protected maintain a cause of action for discrimina- the charge pending still before Commis origin. tion based on national R. 191. prove prima To facie case sion.” retaliation, granted court district Clinic’s Ms. Nettle must show that protected activity, that the summary judgment. engaged motion for The dis- (1) took a material “adverse action” Clinic “totality trict court held that under the her, against and that there was a causal circumstances,” juror no reasonable protected activity connection between the could the comments that were find and the adverse action. See Montes v. directed at Ms. Nettle created a hostile Clinic, (10th 1160, 1176 Vail 497 F.3d (2) environment, work Ms. Nettle did not Cir.2007). The district court noted that it prima showing make a facie that she had “undisputed” filing an EEOC adversely been treated because of her skin activity, against which charge protected is (3) color, there was no causal connec- could not have retaliated Clinic filing tion between Ms. Nettle’s her first firing Op. Ms. Nettle. Dist. 19. This Ct. charge EEOC Clinic’s decision to burden to show that leaves Ms. Nettle’s her, retaliatory fire hence no termination. there was a causal connection between the 15, 18, Op. Dist. 21. The court Ct. district (the filing charge protected of the EEOC origin also held that her national claim was (the activity) and her termination adverse exhausted, administratively because action). “identify origin she did not national as a basis for discrimination in her EEOC that Ms. Nettle objected The Clinic connection, Charges of Discrimination.” Id. at 24. could not show a causal agreed. district court Ms. Nettle filed accept ment can evidence when it her first Charge Discrimination on Octo would be admissible if offered in court. 22, 2004, Co., ber and the her Adams v. Am. & Clinic fired on Guar. Liab. Ins. (10th Cir.2000) F.3d year. November 1 of that same A (“Hearsay causal testimony that employee’s connection between an would be protect inadmissible at trial cannot be used to defeat a activity ed an motion for employer’s adverse ac summary judgment^]”). Ms. “may tion Nettle’s tes be demonstrated evidence of timony that Ms. Hill told her that she justify circumstances that an inference of (Hill) charge had faxed the on October 22 motive,” retaliatory such when pro hearsay. inadmissible Ms. Nettle could tected “closely conduct is followed” by an have testimony obtained from Hill di adverse action. Burns v. United Tele rectly, but Accordingly, did not. there is Kan., Inc., phone Co. no admissible evidence in the record show (10th Cir.1982). But the Clinic maintains ing that the Clinic received the charge that it was not aware that Ms. Nettle had prior to Ms. Nettle’s termination on No filed her Charge with the EEOC until vember 1. November so that it could not have fired charge, because of the if even it fired Alternatively, Ms. Nettle argues she filed charge. See Jones after “protected activity” that caused U.P.S., Inc., her firing was more than simply her filing Cir.2007) (“Unless employer an knows that of an charge. EEOC Appellant’s Br. 15. employee an engaging protected ac The district court held that Ms. Nettle’s *6 tivity, it cannot against retaliate that em charge retaliation complain “did not ployee protected because of the con she was against retaliated because she ...”), Rice, duct. v. Williams voiced informal complaints superiors (10th Cir.1993) (“to 181 establish a ‘causal co-workers, because she disagreed connection,’ plaintiff must show that her placement on administrative leave or individual who took adverse action against because she believed her placement on him knew of the employee’s protected ac administrative discriminatory.” leave was tivity”). Op. Dist. Ct. 19 n. 14. Ms. Nettle con
Ms. Nettle testified in her deposition tends that the district court erred read person who “took her informa- ing her charge “narrowly,” retaliation this EEOC, Hill, tion” at the Carrie indicated and that protected activity for which going that she was charge fax her to the she suffered retaliation included earlier in day” Clinic “that up by and “follow[] complaints ternal superiors to her and co mail.” R. Although 284-85. Ms. Nettle workers. deposition conceded in her that she had no Ms. Nettle is correct that “informal com-
first-hand knowledge that the Clinic re- plaints” can be considered protected as charge termination, ceived her prior to her PVNF, L.L.C., activity. v. E.E.O.C. 487 says she she called Ms. Hill later in the (10th Cir.2007) (prohibition F.3d 804 day of 22 October Hill Ms. told her against “protects retaliation conduct short it,” “she had meaning faxed the charge. of filing charge”). a formal be- The issue 285; Aplt. Br. 24-25. fore us is whether charge her second in- This enough is not to create a genuine a claim protected cluded of this sort of dispute of A fact. court on summary judg- activity. See, e.g., in retaliation cases. Denetclaw v. part of Ms. Nettle’s second
The relevant Contractors, Inc., Bros. that she believed she had Thoutt Concrete charge read (10th Cir.2008) Fed.Appx. complaining “for of 287 against been retaliated “I that I been (charge read believe have activity my in protected above-mentioned filing in retaliation for a terminated garbled R. 33. There is some charge.” Discrimination”); Ross v. Pot Charge of (Why would she be retaliat- syntax here. (10th Cir.2004) ter, 209, 210 Fed.Appx. complaining protected for against ed (“Ross alleged filing ... retaliation for a meaning charge activity?) But the discrimination”). If charge of Ms. Nettle straightforward: seems against for believed that she was retaliated she had been terminated be- charged that activity, filing other in addition to her complained about discrimination cause charge, she could have filed a EEOC charge,” above-mentioned which “the Kan., charge. new See Annett Univ. Charge her first of Discrimination be- Cir.2004) (hold Moreover, “particu- fore the EEOC. action ing retaliatory that each discrete straight- charge support lars” of the this its own “unlawful constitutes reading. charge, In her second forward practice for which remedies administrative Nettle recites that she filed her first (citation omitted)). must be exhausted” charge of discrimination on October 1. She then was fired on November identi- Moreover, even if Ms. Nettle’s EEOC fies who her of her termination notified charge interpreted expansively could be and then concludes with the statement asks, complaint as she now in district (“I I have question believe been retaliated expressly to “retaliation court was limited ”), no against with mention of other filing charge of discrimination.” R. protected activity. Further evidence in may be the reasons for Whatever support interpreta- of the district court’s liberal construction of an uncounselled tion: Ms. Nettle entitled the second cause charge, EEOC it is well established complaint action “retaliation for claims not made in district court are filing charge of discrimination.” R. 16. *7 F.3d Rogers, waived. United States 556 (10th Cir.2009). 1130, Accordingly, 1136 agree We with Ms. Nettle that we must granting affirm the district court in we charge liberally. read her Kells v. Sin summary judgment to the Clinic on her Truck, Inc., clair Buick-GMC retaliation claim. 827, Cir.2000); 836 Brown v. Hartsh 680, orne Pub. Sch. Dist. No. (10th Cir.1988). 682 But we cannot read III. on Discrimination charge to include conduct she did not the Basis of Color give mention. can While we her words a A. Hostile Work Environment construction, liberal filling gaps reading vague expansively, Rights terms we are Title of the Act VII Civil nihilo, proscribes employment practices not entitled to invent “ex a claim Kells, simply “permeate workplace which was not made.” 210 ‘discrimina intimidation, ridicule, F.3d at investigation tory 836. The called for and insult that language charge sufficiently pervasive of the severe or to alter obvious and limited: to see whether she of the had been conditions victim’s against filing charge working retaliated her first and create an abusive environ ” Tademy Corp., discrimination. Such claims are familiar ment.’ v. Union Pacific (10th Cir.2008) (inter- F.3d tempted present; to initiate or any requisi- omitted). quotation nal citation and “Con- tion or anything requested in regard [she] pervasive that is not severe or enough denied.”). duct youth groups [her] wasn’t objectively to create an hostile or abusive Ms. Nettle asks us to reverse the dis- work environment —an environment that a trict holding. court’s Her points brief person reasonable would find hostile or pages several in the record which summa- beyond abusive—is Title purview.” VII’s rize “the instances of discrimination be- Sys., Harris v. 510 U.S. Forklift cause of her skin color” that Ms. Nettle (1993). 114 S.Ct. L.Ed.2d alleges she has Aplt. suffered. Br. at 27. The district court held that “some of the These stated many instances suffer from comments and remarks” of her co-workers of the problems the district court supervisors could have caused Ms. identified opinion. in its Dates are left subjectively to perceive that her unspecified. Ms. Nettle again admitted working environment was hostile and abu- again that she could not recall the Op. sive. Dist. Ct. 13-14. But it also held dates or events at which Mr. alleg- Hunter objective that “from the standpoint,” the edly made the discriminatory comments. “harassment or offensive conduct over the 88-89. She also identified other thirteen-year employment period was not people as making remarks, discriminatory sufficiently frequent constant or ... that it but likewise give specific could not dates could be sufficiently pervasive considered or events at which were made. R. or severe to survive summary judgment.” 90-91, 93, Many allegations 95. Id. at 15. against Mr. Hunter are In vague. The district court highlighted three defi- deposition, she said that 1993 in “[i]n all First, ciencies it saw Ms. Nettle’s case. meetings,” staff there always would be “at that, it noted although Ms. Nettle had least one discriminatory or racial slur many “named individuals who she con- against different tribal or light- affiliations tended harassed her .... has not [she] people,” er-skinned and from “1993 to attributed offensive many remarks to termination date [her] there were state- harassers, alleged these and she has not ments of discrimination Mr. Hunter.” described the many exact nature of short, R. 88-89. “[everything in Second, Op. comments.” Dist. Ct. it negative nature” came from Mr. Hunter. noted that Ms. Nettle “had admitted that R. 250. she cannot recall with specificity the *8 vagueness Some of this is inconsequen- many
dates when ... comments were tial. A hostile work environment claimant Finally, made.” Id. although Ms. Nettle need not precise every establish dates for to subjected claimed have been to discrimi- all, point insult. After of such claims throughout nation her employment, “she that the ongoing is discrimination was has conceded that ... until ‘[19]96 [19]99 is, time, pervasive, that all the and not at good years” and that she did not See, points e.g., isolated in time. Rocha recall that Mr. Hunter directed offen- Cruces, Vigil City 871, v. Las 119 F.3d time, during sive comments at her that of (10th Cir.1997). Moreover, 15; 875 except jest. Id. at see R. 242-43 (describing years specific by that in those does recall some remarks Mr. Hunter Mr. “speak would with ... promote [her] Hunter and others. She testified that Mr. [and] any activities that initiated or at- [she] Hunter commented that Ms. Nettle
922 v. Indian, Title Harris implicate We VII.” but we wonder. she’s “thinks Forklift 21, Inc., 17, 114 367 S.Ct. Sys., since the 510 U.S. trying get to rid of her been have omitted). Hunt- and internal citation (quotations R. 167-68. Mr. hired her.” day we Nettle, Rather, is one that hostile work environment said, according to Ms. a er also rep- find hos person look Indian “don’t would did not that a “reasonable people who 1 community R. well.” entails generally the Indian Id. This resent tile or abusive.” addition, points specific she com “steady barrage opprobrious [ 246. of ] members, ex- Inc., Indus., other clinic remarks Herrera v. ments.” Lufkin that Paddyaker’s Cir.2007) remark (10th Daren ample, (quoting 474 F.3d 680 Indian,” and a “wannabe Ms. Nettle was Mexico, 826, 832 397 F.3d v. New Chavez she comment that Singleton’s Dawn (10th West, Cir.2005)); Ford v. F.3d R. 232. Affi- counselor.” the “white (10th Cir.2000) v. (quoting Bolden allege that employees other davits from Inc., 545, 551 Cir. PRC Operating Offi- Sunday, the Chief Robyn 1994)).2 clinic, to Ms. Nettle as referred cer of that the district court do not believe We white Renee” on several big-boobed “the allega- finding erred in that Ms. Moreover, 366, 369. affida- occasions. R. this does not meet tion of discrimination allege that those employees from two vits allegations of iden- Ms. Nettle’s standard. were treated appear “Indian” who did con- discriminatory harassing tifiable Fi- differently at the Clinic. ... slurs” rather “sporadic duct constitute patients that child at the nally, alleged she ... “steady barrage opprobrious than a Clinic, parents, their would sometimes v. comments.” Bolden PRC “white doctor.” R. 237. refer to her as (10th Cir.1994). note, also We environment one that A hostile work court, that Ms. Nettle was did district discriminatory intimi “permeated decade, by the for over a employed Clinic ridicule, insult, dation, is suffi was treat- and that she conceded ciently pervasive severe or to alter favorably significant portion ed for a employment conditions of the victim’s time, “around 1999.” R. from 1996 to working environment.” create an abusive 242; Op. 14-15. see Dist. Ct. Denver, City County & MacKenzie Nettle’s claims that Mr. Hunter (10th Cir.2005). Ms. It is F.3d at “frequent” would make racial comments of Title to make a not the function VII generally “nega- meetings staff and was every insulting or un federal case out tive,” as the statements her co- as well remark, pleasant even those related to workers that there was discrimination utterance of an protected “[M]ere status. clinic, to the level of creat- feel do not rise engenders ... which offensive epithet Nettle’s claim ing genuine dispute. ings employee in a does not sufficient termination date ly [her] affect the conditions of to that from “1993 *9 precedents complains that these appears 1. It that Ms. Nettle heard this remark 2. dissent disjunctive "improperly have converted resources di- second hand from human analysis,” pervasive,' into a con- 'severe or fact, only specific rector. R. 246. analysis, requiring per- junctive "severe and appears remark from Mr. Hunter Ms. Nettle " Op. n. 4. But that is the vasive.’ Diss. 933 alleged claims she's to have was "she circuit, governing Appellant law in this Indian, but we wonder” line. See R. 397-98. has not asked us to revisit it.
923
there were
statements
discrimination
those
lighter
about
whose skin is
or darker
89,
Hunter,”
others,”
overly vague
Mr.
R.
both as
than
R.
related to her.
pervasiveness
severity.
and as to
See
Nor
particular
do
Stores, Inc.,
com
Adler v.
Wal-Mart
F.3d
ments recalled Ms. Nettle
(10th Cir.1998)
strike us as
(“Vague,
concluso-
(consid
sufficiently severe or opprobrious
ry statements do not suffice to create a
ered objectively) that a
jury
reasonable
fact.”);
genuine issue of material
see also
would regard
“altering]
them
the condi
Quevedo
Shipping,
v. Trans-Pacific
tions of the
victim’s
(9th Cir.1998)
(noting
creat[ing] an abusive working environ
56(e)
that
provides
party
Fed.R.Civ.P.
MacKenzie,
ment.”
Of what is person pleasant place one Clinic was not a for Ms. may be deeply offensive to another. People things, What Nettle work. said crude speaker her, pet intended his remark is not projects away were taken from dispositive, per- and racial insults are not singled she was made to feel out be- merely speaker missible because the re- cause of her appearance. Caucasian But gards them as humorous. But Title VII’s standard for redress is a hostile
926 class, has “described environment, protected which she unpleasant not an one. work ” Americans.’ Native See, Manager, Dept. ‘light-skinned v. as Duncan e.g., of Denver, court, how- Op. 397 F.3d 16. The district County & Dist. Ct. Safety, City of Cir.2005) (Title (10th ever, that Ms. Net- agreed VII with the Clinic 1313-14 necessary primary for boorish behavior remedy failed to make the provides no tle Americas, taste); Sprague v. Thorn an adverse showing that she had suffered or bad Cir.1997) (10th 1355, 1366 129 F.3d action. Id. at 18. employment not and boorish conduct does (unpleasant period that in the Ms. Nettle concedes environment). Inci a hostile work create charge— in her first EEOC identified many years, over and spread out dents to October 2004—she March lack mostly poor taste and which indicate an any salary nor receive “did not lose do not rise to the level professionalism, of that nonetheless official demotion” but See, e.g., work environment. of a hostile that the terms and “the evidence shows Home Loan Bank Penry v. Federal of were al- conditions 1257, 1263 Topeka, 155 F.3d Cir. Br. 38-39. Ms. Nettle Aplt. tered.” 1998). dissent, to the respect all due With Thanksgiving and points to the removal the dissent’s standard for we believe that job from her functions Christmas Drives severity pervasiveness and falls short started); had (programs which she Supreme court and the Court what this office; being al- relocation to a new forth, and would make broad have set up a booth at the Oklahoma lowed set workplaces subject to swath of American Center; University Health Sciences liability Title VII. under being pulled attending from Native Ameri- affirm the district court’s therefore We capital, at the state Heritage can week ruling that the Indian Clinic is entitled to 168-69, things. other R. 362. It is among on summary judgment Ms. Nettle’s hostile that the re- not evident from the record work environment claim. Thanksgiving moval of the Christmas period occurred within the time
programs discrimination, alleged in which Ms. Nettle Employment B. Adverse Action did, but even if it we do not see of the VII, employer may Title Under an affecting her events cited Ms. Nettle against any not “discriminate individual Al- employment. terms and conditions of terms, respect compensation, to his approach,” though we take a “case case conditions, privileges employment, mone- finding and do not limit ourselves to race, color, because of such individual’s tary or loss of benefits to constitute loses sex, religion, origin.” or national action, an the action must rise adverse 2000e-2(a)(l). § In order to show U.S.C. above the level of “a mere inconvenience Ms. Nettle must establish discrimination job responsibilities.” or an alteration of (1) protected she is the member of a Sch., v. Sanchez Denver Pub. class; (2) employ she suffered an adverse (10th Cir.1998). (3) action; qualified ment she was for the (4) issue; job description Ms. Nettle’s included position she was treated required would be clause that said she favorably pro less than others not Maketa, assigned.” “perform[j other duties Piercy tected class. (10th Cir.2007). deposition in her The Clinic 404. She said Thanksgiving does not Nettle is in a she considered the dispute part Christmas drives to be charge (by box), as- not checking the she had signed duties. R. 206. But there is no not administratively exhausted her claim. inconsistency job description with the that Accordingly, permit it did not duties, assigned, expand some once should “to scope later be lawsuit and [her] *13 unassigned Moreover, necessary. as include at this late date” a origin national various claim. Dist. given Op. additional duties she was Ct. do not reach the core of the description of her Circuit, The Ninth in a case cited Ms. position as “Native American Spe- Youth Nettle, held that discrimination against an provide cialist”: “to Health Promotion/Dis- Indian tribe give could rise to a national ease Prevention services directed towards origin VII, claim under Title because Indi youth American Indian for the Community an tribes be could “considered nations.” Services Department.” R. 403. The fact Dawavendewa v. Salt Project Agr. River Nettle prevented from at- Dist., Imp. & Power tending some external events does not (different Cir.1998) Indian tribes represent significant change a in her em- “were at nations, one time considered ployment Piercy, status. See 480 F.3d at extent”). indeed still are to a certain The (adverse employment action includes Clinic does challenge very not idea of “significant change status, in employment national origin discrimination based on hiring, such as firing, failing promote, to membership in a tribe in its brief before reassignment with significantly different us, so we assume without holding that one responsibilities, or a causing sig- decision can bring legitimate claim of national (citation nificant in change benefits.” omit- origin discrimination based on discrimina ted)). tion against one’s tribe.
Because we hold that Ms. Nettle did not We must therefore consider wheth action, suffer an adverse we er Ms. Nettle can be said to have made do not reach the other in steps the test for such a claim in her original charge. To showing discrimination.
“effectuate the remedial purposes of Title VII,” liberally courts are to construe Origin National IV. Discrimination charges filed with the EEOC. Harrell v. finally argues that she should Spangler, 957 F.Supp. be able to (D.Kan.1997). make a claim for origin national Accordingly, “the crucial discrimination, though even she did inquiry is whether the claims set forth in check off origin” “national on her first the civil complaint fall within the scope of charge. “particulars” EEOC The investigation reasonably that could be charge stated that Ms. Nettle expected and other grow out of the EEOC employees “being differently treated charges.” Although Id. Ms. Nettle did not because bribe or skin color.” [their] check the box for origin national in her added). (emphasis alleged state, She also in charge, she particulars, did particulars during meetings, Mr. that she being believed she was discrimi Hunter would “make comments about dif- nated against because of her tribe. More added). over, ferent tribes.” Id. (emphasis complaint, Ms. Nettle ex district court found that because plained Ms. Net- that Mr. Hunter “made statements “identify tle did not origin national aas regarding being the Delaware Tribe basis for discrimination in her EEOC” want-to-be’s which indicates Plaintiff wants Indeed, proper like Indians of browner notice come to the fore. pretend and be Hunter, part strategy of the Clime’s its motion complaint Mr.
skin.” R. 26. summary judgment was to concede continued, regard- “also made statements that Mr. Hunter had made comments employees, Tribal ing Cheyenne-Arapaho affiliation, about Ms. Nettle’s tribal but to employees, Cherokee and Choc- Comanche argue that about tribal affilia- statements Id. employees.” taw Tribal support tion could not a claim for race or charge that Ms. It seems clear from discrimination, color which is what Ms. alleging origin national discrim Nettle was alleged. hardly R. 59. It seems ination, provided adequate it no and that reply, argue fair that Ms. Nettle in could City Stephens tice to the Clinic. See *14 of along really that —all alleging —she (D.Kan. 947, 950 Topeka F.Supp.2d discrimination, origin national and that she 1999). plaintiff the not Stephens, did proceed should allowed to on those be charge, check the box “race” on his and grounds, grounds rather than the which “I I charge wrote in his believe was presented Complaint. in her While differently my of National treated because charge Nettle’s Ms. could be read as en- Origin my age, younger, because white compassing origin a national discrimination managers/employees were treated dif claim, the same cannot be said Id. The district court held that ferently.” Complaint. Stephens because Mr. said he was treated Even if were to read Nettle’s we other “white” differently employees, from Complaint to encompass origin national (also) suggested making this he was an discrimination, we doubt that it could with- allegation of racial discrimination. Id. In summary judgment. stand a motion for well, case,
this Ms. Nettle made claims (i.e., specific Ms. Nettle’s vague) not race charge in her related to Mr. Hunter’s com origin rely and national appear claims to tribes, ments about various other claims on much the same information we have which relate to Ms. Nettle’s national ori already in considered connection with her gin. (for claim for color example, discrimination lighter that some tribes had color skin court, Complaint In her in district how- 12). tribes, already than other haveWe ever, did not allege discrimina- concluded this evidence was insuffi- tion on tribe or origin. based national Her cient to survive summary judgment. Un- Complaint alleged discrimination “on ac- facts, less Ms. Nettle has other which she count of race and color” in Only alone. put did not forward even in her to reply her reply to the Clinic’s motion for sum- the motion for summary judgment, then mary judgement drop did Ms. Nettle pertaining only origin facts to national claim of race discrimination to ask to up discrimination make a smaller set of the be “allowed to maintain a cause of action available facts pointing discrimination of origin for national discrimination.” R. 191. summary kind. If she did survive facts, judgment larger on the set of above, plaintiffs As noted are confined to fortiori, she could not survive it with the they timely the claims raise in their com- smaller set. plaint. plaintiff “may A not amend her complaint through allegations in made re- Conclusion V. sponse summary judg- to a motion for Potter, ment.” judgment We AFFIRM the of the dis- Griffin (7th Cir.2004). Here, concerns about trict court. BRISCOE, J., Judge, concurring employment duties—and then Circuit affirms grant summary judgment of for each cate in dissenting part. part gory. I disagree majority While with the respectfully dissent part I concur opinion’s reasoning for these individual I exception, agree one part. With I categories, am more troubled Regarding the hostile majority. work majority’s parsing of allegations. claim, majority’s I environment read “[Ojur hostile environment cases consis improperly consider witness opinion tently emphasized have the need for the evidence, credibility, improperly weigh district court to the totality examine of the meaningful analysis totality omit reviewing summary circumstances when surrounding circumstances Nettle’s al- Indeed, judgment motion. very term legations. Accordingly, I would reverse ‘environment’ allegedly indicates that dis grant summary judg- the district court’s criminatory incidents should not exam be ment for the Clinic on Nettle’s hostile ined in isolation.” Penry v. Fed. Home environment claim. work Topeka, Loan Bank 1257, 1262 Cir.1998) (citation omitted). grant To affirm the district court’s *15 summary on Nettle’s judgment hostile I. Allegations Divided claim, majority environment be-
work of gins by quoting standard elements “Vague” Allegations A. a plaintiff such claim—a must show that a jury workplace rational could find that the majority The reviews the district court’s “permeate[d] ‘discriminatory ... was three-pronged reasoning granting sum- intimidation, ridicule, and insult that is mary judgment. Two of the identified sufficiently pervasive severe or to alter the specificity reasons relate to the of Nettle’s of the employment conditions victim’s and (“[S]he allegations. E.g., Maj. Op. at 921 ” an working create abusive environment.’ of has described the exact nature (quoting Tademy 920-21 Maj. Op. at comments,” “she cannot many of the and Corp., Union Pac. specificity recall with dates when (10th Cir.2008)). im- majority made.”).1 The then ... comments were The many allegations into plicitly divides third reason isolates Nettle’s concession statements, categories “vague” several portions employment that of her “were — in jest,” specific Id.2 The comments “made state- good years.” majority agrees ments, statements, Net- patient and removed with the district court’s assessment of specified, I omit the ma- able inference would be that the last five Unless otherwise jority’s quotation opinion. of the district court years good of Nettle's were not years "significant years. If three constitutes a employed 2. Nettle was with the Clinic for Clinic, portion” with the of Nettle's tenure year[s],” ending Maj. in 2004. “thirteen[] years then a more recent five is a more conse- Op. at 921. Nettle conceded that “[19]96 quantity employment. quential Sec- good years.” until Id. at 921. [19]99 ond, I fail to how concession understand this majority opinion The makes much of this con- negates her hostile work environment claim. cession, ”not[ing] ... Nettle that Ms. totality analysis should be the of The central decade, employed by the Clinic for over a surrounding the circumstances Nettle’s em- that treated that she conceded she was favor- (“ play time, ployment. Penry, at 1262 'A ably significant portion for a of that ” cannot be on the basis of some of Id. at 922. understood from 1996 to ‘around 1999.’ performance, entire majority opinion’s its scenes but on its The on this time reliance First, similarly, analysis must period two discrimination raises concerns. reason- (“The[] be like Indians of browner pretend Id. at 921 allegations. [alle- tie’s 12; suffer skin.” R. R. 154. appellate brief] in Nettle’s gations problems that the dis- many from majority acknowledges also The The opinion.”). its trict court identified alleges that “in 1993 in all staff summary grant affirms the majority meetings, always there would be at least category this of Nettle’s alle- judgment for discriminatory or racial against one slur Ex- Mr. Hunter Chief gations [the —“that lighter- different tribal affiliations or Officer at the would make Clinic] ecutive people skinned and from 1993 to her ter- comments at meet- ‘frequent’ racial staff mination date there were state- [in 2004] well ings generally ‘negative,’ and was Hunter,” Mr. ments discrimination by her as the statements co-workers majority allega- but the this characterizes at the [C]linic”— there was discrimination “vague.” Maj. Op. (quota- tion as “[v]ague, the standard that by applying omitted). I tions and alterations While conclusory do not suffice to statements statement concede cited could issue of material fact.” genuine create a specificity, portions from more benefit majority opinion also Id. at 922-23. equivocate key the statement do not on the allegations regarding discounts Nettle’s location, content, proofs: frequency, “It can- concluding, Hunter’s comments alleged offensive target comments. that all not be assumed of his comments personal Nettle’s statement is based on tribes, and about about different those knowledge. specifics has With set lighter or darker oth- whose skin than forth, presented she has more than a “bald ers, (quotation to her.” Id. at 923 related *16 assertion” that she suffered from a hostile omitted). and citation Moreover, work environment. because view, my reasoning this im- improperly Nettle’s statement does draw conclusion, credibility of weighs proper implicit the Nettle’s submitted inference or I “vague evidence and labels comments as clonot consider the statement to be conclu- conclusory” sory. when are not. Sand Tel., L.P., 1101, ers v. Sw. Bell 544 F.3d disagree majority’s I also with the asser (10th Cir.2008) (“[I]t 1105-06 is not our tion that cannot be all assumed that “[i]t province summary at the judgment stage comments about [Mr. Hunter’s] different determinations.”). credibility to ... make tribes, and about those whose light skin is others, the majority, As stated “Nettle is er or than darker related to [Net one-half Maj. Op. summary Caucasian and one-half Native at 923. At the tle].” American, a member of the judgment stage, “we must construe all Delaware/Cad- Maj. Op. do Tribes.” at 916. There no facts and reasonable inferences in favor of dispute light-skinned that Nettle was a non-moving party.” Bryant Indep. v. American, 1-38, alleged- Native and that Hunter Sch. Dist. No. 931 (10th Cir.2003). Here, ly targeted her for ridicule because of her Nettle is the non- color, including skin regarding moving party. allegations comments If Nettle’s are true, “they Delaware Tribe such as want to stage, which must be assumed at this (“After all, point concentrate not on individual incidents [or 921 of such claims is that scenario.'") periods], but on the overall ongoing pervasive the discrimination was City (quoting Philadelphia, v. Andrews 895 time.''). points ... and not at isolated (3d 1990)); Maj. Op. F.2d 1484 Cir. 17, 22, then this evidence support would her hos- 510 U.S. 114 S.Ct. 126 L.Ed.2d (1993)). tile work environment claim because it 295 workplace demonstrates a “permeate[d] I analysis consider this flawed for sever intimidation, discriminatory ridi- al reasons. Whether a comment is intend cule, Tademy, and insult.” 520 F.3d at ed to be or “in insulting jest” is irrelevant (internal omitted). quotation It to whether steady barrage there is a should be the role of a fact finder this opprobrious comments. See EEOC case, and not the district court on sum- PVNF, L.L.C., (10th mary judgment, to determine whether the Cir.2007) (“We held, have never nor would alleged comments made to and about Net- we, that to be subjected to a hostile work tle altered the conditions of her employ- environment the discriminatory conduct ment.
must be both directed at the victim and
victim.”).
intended to be
received
B.
in jest”
“Comments made
analysis
for whether a statement con
tributed to a hostile work environment is
The majority
portions
also discredits
whether the “victim
perceived
herself
Nettle’s allegations as comments made
environment
to be abusive” and
jest.
923-24,
whether
Maj. Op. at
925. The
the statement was
pervasive
“so severe or
majority highlights that “as Ms. Nettle
concedes,
an objectively
many
person
of the
reasonable
comments
jokingly.”
made
would find it
(listing
Id. at 923-24
rec-
abusive
hostile.”
N.M., Inc.,
ord citations where Nettle
Sports,
identifies com- Williams
v. W.D.
Indeed,
being
jest”).
Cir.2007)
ments as
made “in
F.3d
(citing
majority
Harris,
notes that in
367).
certain circum-
Id. at 925. Accordingly,
majority
the
de-
a ‘hostile’ or abusive work environment.”
allegations
termines that Nettle’s
of com-
Maj. Op.
agree
at 925. I
a portion
jest”
ments made “in
are insufficient to
this statement.
If the recipient of the
environment,
create an
working
abusive
messages finds the comments to be non-
stating “where
jest
comments are made in
malicious,
subjective
the comment fails the
such,
the plaintiff recognizes
them as
context,
portion of
analysis.
the
that
they
unless
are of
pervasiveness
unusual
the
“in jest”
statements made
would not
severity, they
ordinarily
cannot
be re-
garded
contribute to a
having
as
the
hostile work environment.
‘alter[ed]
conditions
Conversely,
only
victim’s
statements
the
create[d]
an abusive working
speaker
environment.” Id. at
considers nonmalicious—but
924 (citing Harris v.
Sys.,
recipient considers offensive—could con-
Forklift
Id.
(citing
if
at 924
severity.”
hostile work environment
siveness or
tribute to a
Harris,
367)
cise because words and employees or in the regarding person’s a race exercise of and color can be reasonable care have should omitted)). PVNF, known.” (quotation “intensely degrading.” Accepting See true, Nettle’s allegations as if the Clinic (quoting Hinckley F.3d at 799 Winsor v. “white,” introduced Nettle (10th it should ex- Dodge, Cir. pect patients its and parents their to follow 1996) considering a epithet); sexual suit and refer to Nettle as By “white.” Co., Rodgers v. Ins. W.-S. F.3d Life this although it is not clear that (7th Cir.1993) 668, 675 (“Perhaps single no conduct— the threshold requires standard Nettle to quickly act can more alter the conditions present such evidence—the argu- Clinic employment and create an abusive work ably “encouraged” has patients ing environment than the use of an unam parents their to refer to Nettle as “white.” biguously epithet racial ... by supervi a subordinates.”) presence sor in the of his
(internal
omitted).
citation
quotation
E.
Employment
Removed
Duties
While the majority lists the allegation
D. Patient Statements
that “Mr. Hunter said ...
that people who
did not look
represent
Indian ‘don’t
alleges
Nettle
patients
that “the
[of
”well,’
community
Indian
Maj. Op. at
”
would call her the
Clinic]
‘white doctor.’
Nettle also alleges
prevented
that she was
37;
Aplt. Br. at
R.
234. The majority
representing
from
the Clinic at certain
opinion
such
“believe[s]
claims are of little
events because she did not “look Indian.”
significance
case,”
in the context of this
37;
Aplt.
Br. at
246. With little
presents
because “Nettle
no evidence that
analysis,
the majority opinion brushes
her employer encouraged her patients to
allegations
these
aside as being not severe
refer to her as the ‘white doctor....’”
Id.
(“We
or pervasive. Maj. Op. at 925
dis-
at 924.
agree that not being able to attend two
which,
events
at
best
Because comments
patients
made
discretionary part of her job, amounts to
pai'ents
part
their
are
of Nettle’s
discrimination that is ‘severe.’ Nor does
environment,
workplace
they are relevant
the fact of being prevented
attending
from
present inquiry.
to the
That the patients
two events from many-year
career show
parents
and their
employees
were not
that Ms.
experienced
‘pervasive’
is not
Clinic
determinative. The Clinic
discrimination during
employment
may
responsible
be held
comments
Clinic.”).
patients
its
and their parents because
there
they
is evidence that
should have
Although the majority would discount
known about such comments. See Lock
evidence,
this
I consider
allega-
Hut, Inc.,
ard v. Pizza
1073 tions that
prevented
she was
repre-
from
(“We
Cir.1998)
agree with our sister
senting the Clinic in
community
be-
circuits that
employer
an
may be found cause she did not “look Indian” to be
liable for the harassing conduct of its cus
relevant
give
to and
weight to her hostile
tomers.”);
id. at 1074 (“[E]mployers may work environment claim.
allega-
These
be held liable in these
if
circumstances
tions,
true,
if assumed to be
are indica-
remedy
fail to
prevent
a hostile or
tive of a workplace where Nettle’s skin
offensive work environment of which man-
impacted
color
status
*20
”
employer,
co-workers,
her
person
in
position.’ McCowan,
[Nettle’s]
community
the
the Clinic served. Fur
273 F.3d at
(quoting
Oncale
Sun
ther,
allegations
these
Servs.,
contradict other
75, 81,
downer
523 U.S.
Offshore
portions
majority’s
the
reasoning.
(1998)).
118 S.Ct.
ronment, unpleasant stating not an boorish, remedy Title does not VII
unpleasant conduct and bad taste. Id.
By reasoning, majority either this
improperly weighs evidence or reduces
hostile work environment claims to seman- summary
tics. It is axiomatic that at the
judgment stage, province “it is not our ” Sanders, weigh the evidence.... In the
F.3d at 1105-06. context of hostile claims, prohibition
work environment this
against evidence weighing gains signifi-
cance as we have noted that the “severity
pervasiveness
particular-
evaluation is
America,
UNITED STATES of
ly
summary
unsuited for
judgment be-
Plaintiff-Appellee,
quintessentially
question
cause it is
Herrera,
(quotation
fact.”
Based on these I cannot agree majority’s with the characterization No. 09-7016. workplace merely of Nettle’s “unpleas- States Appeals, United Court of
ant” and not “hostile.” Nettle does not Tenth Circuit. allege simply boorish conduct or behavior alleges bad taste. She conduct that July “singled out because of her [her] Cauca- appearance,” Maj. Op. sian includ-
ing racially-based comments, frequent
jokes, impacted and decisions that job majority
duties. The explanation offers no why subjective view of her insufficient
workplace objectively sup-
port her hostile work environment claim. Second, Hams notes “Title VII to of- she knew intended discriminatory violated” when the com id. fend,” majori- as for the license “sufficiently pervasive ments are severe or “in ty disregard to all comments made to alter the victim’s em conditions Simply Nettle identified jest.” because ployment working and create an abusive “in jest” does not mean that comments environment.” Id. at 925 (emphasis add subjectively the comments were not ed). majority’s “unusually” I consider the objectively pervasive. severe or More- pervasive severe or to create a standard over, ability distinguish offen- higher proof threshold of for Nettle than sive comments from comments received accepted “sufficiently” perva severe or jest” “in and considered to be nonmalicious majority sive standard. Consequently, the arguably allegations lends credence to her Harris, heightens cites but the standard racial frequent comments that were not Harris,' however, Harris set forth. clari Thus, “in jest.” majority’s received the' pervasive” fies that the “severe or stan conclusion—“where comments are made dard is the baseline actionable hostile jest plaintiff recognizes them as rejects work environment claims and such,” these identified comments cannot Harris, stringent more standard. support 22, 114 hostile work environment atU.S. S.Ct. 367. universally applicable claim—is not to all Id. at 924. Be- jest.” made “in comments Specific Allegations C. majority cause the makes no effort to dis- hand, On the other the majority admits tinguish comments “in jest” between made vagueness of this is inconse- “[s]ome that Nettle considered offensive and com- quential.” Maj. Op. majority at 921. The jest” “in ments made that Nettle consid- (1) “specific then lists some remarks”: nonmalicious, majority’s ered assertion “Mr. Hunter commented that Ms[.] disregard that “we cannot the distinction Indian, ‘thinks she’s but we wonder. We jesting between and insulting” specious. trying get have been rid of her since Id. at 925.
Notes
notes
comments made in
gleton[]
that
eomment[ed]
[Nettle]
cannot
counselor,’” id.;
regarded
having
(5)
“be
as
‘alter[ed]
the
“Robyn
‘white
the
of
conditions
the victim’s
Sunday, the
Operating
Chief
Officer of the
and
working
[C]linic,
an abusive
create[d]
environ-
big-
referred to Ms. Nettle as ‘the
ment,”
unusual
they
“unless
are of
perva-
boobed white Renee’ on several occa-
933
(6)
id.;
sions,”3
allege
meetings,
always
at
there would
be
employees
“staff
“[T]wo
discriminatory
‘Indian’ at least one
or racial slur
appear
those who did not
that
id.;
Clinic,”
light-
different tribal affiliations or
differently
against
at the
treated
(in-
(7)
Clinic,
people.” Maj. Op.
at the
er-skinned
921
patients
“[C]hild
omitted).
quotation
Similarly, given
refer to ternal
parents, would sometimes
their
doctor,”’
three of the
majority
specific
id. The
listed seven
alle-
her as ‘white
grant
summary judgment
gations
ongoing
Sunday’s
of
include
affirms the
conduct—
allegations
insulting description
being
because
of Nettle
made
specific
for these
occasions,”
... slurs’ rather than
“on several
that “those who did
‘sporadic
“constitute
appear
... com not
‘Indian’ were treated different-
‘steady barrage
opprobrious
a
of
”4
Clinic,”
at the
(quoting
ly
patients
at 922
Bolden v.
Clinic
ments.’
Id.
Inc.,
parents
and their
refer
43 F.3d
Cir.
“would sometimes
PRC
1994)).
to her
‘white
”—there is
majority opinion
The
also reduces
as
doctor’
no basis
“simply
majority’s
iden
for the
of the con-
many
allegations
description
of these
”
tifying]
targeting
“sporadic”
her as ‘white’ and concludes that
duct
Nettle as
in na-
annoying
irritating
“it could be
for a
ture.
person of one racial mix to be mistaken
support
There is also no basis to
the
another,
precedent
but there is no
for re
majority opinion’s
regarding
conclusion
ra-
...
a mistaken racial identifier
garding
cial misidentification.
It
is unclear how
or abusive.” Id. at 923.
opprobrious
majority opinion
only
the
could find
mis-
as,
op-
identity
taken
in such
By quoting
“steady barrage
the
of
racial
comments
Indian,
but we
probrious
language,
comments”
the
“Nettle thinks she’s
won-
disregards
of der” or “wannabe Indian.” Id. at 921-22.
majority
aspects
several
it
clear
allegations
contrary,
Nettle’s
and Tenth Circuit To the
this context
allegations
description
likely
Some of Nettle’s
that the
“white Renee” is
precedent.
comments;
identity.
of
racial
example
involve more than
Nettle also not an
mistaken
me, affirming
summary judg-
of To
alleged discriminatory
grant
conduct. Some
regard-
allegations
steady
discriminatory
include a
bar- ment on
comments
comments;
alleged
ing person’s
pre-
Nettle also
skin color merits more
rage
57, 67,
majority
the dissent for “fo-
477 U.S.
106 S.Ct.
91 L.Ed.2d
chides
(1986)
omitted);
cus[ing]”
alleged description
(quotation
on this
and con-
Pa. State Po
"sting
Suders,
129, 133,
the
in the comment
its
[to be]
siders
124 S.Ct.
lice v.
542 U.S.
Maj. Op.
sexism.”
at-n.
4. This criticism
(2004). This