Plaintiff, a black employee in the Metro Transit Department of the City of Oklahoma City, appeals the district court’s grant of summary judgment in favor of the City on her claims of racial discrimination and retaliation in violation of Title VII. Plaintiff alleges that one of her supervisors, Terry Armentr-out, created a racially hostile work environment and that, after her complaints led to Armentrout’s resignation, various coworkers retaliated against her. The district court ruled against plaintiff on her discrimination claim, concluding that plaintiff did not show that Armentrout made more than sporadic racial slurs and failed to establish the existence of a hostile work environment. Moreover, the court determined that even if Ar-mentrout did create a racially hostile work environment, the City was not liable for it. The' court also ruled against plaintiff on her retaliation claim, holding that even if individual coworkers retaliated against plaintiff, the City was not liable for their actions.
We take jurisdiction under 28 U.S.C. § 1291. Because this is an appeal from a summary judgment decision, we recite and consider the facts in the light most favorable to the plaintiff.
See Hirase-Doi v. U.S. West Communications, Inc.,
I.
Plaintiff began working in the Metro Transit Department in August 1990, where, as the Clerical Coordinator, she supervised four or five customer service clerks. From August 1990 until March 1993, plaintiffs immediate supervisor was Vicki Harty. In March 1993, Harty was moved aside and plaintiff thereafter reported directly to Terry Armentrout, the Assistant Director of Metro Transit. Ar-mentrout, in turn, reported to Steve Klika, the Director of Metro Transit.
The evidence, viewed in the light most favorable to plaintiff, shows that Armentrout frequently made racial slurs and racially derogatory comments. Armentrout also expressed the opinion that too many blacks worked in the department, and he treated the black employees in the department different from the white employees. In the summer of 1993, plaintiff complained to Klika about Armentrout’s racist language and conduct. Klika informed plaintiff he would talk to Armentrout about his language, but told plaintiff she should understand that Ar-mentrout grew up in southern Oklahoma and was not racially sensitive. Klika subsequently told Armentrout to watch his language. Armentrout later took plaintiff to task for complaining about his conduct to Klika, rath *1267 er than directly to him. On December 12, 1993, Klika resigned as Director of Metro Transit, and Armentrout became the Acting Interim Director. Armentrout immediately informed plaintiff she was being demoted, and either Armentrout or Harty told plaintiff that she no longer needed to attend supervisory staff meetings. Armentrout also informed plaintiff that she would no longer report to him, but would report to Harty once again.
Plaintiff testified that once Harty became her direct supervisor again, she seemed to constantly watch plaintiff. Several other employees substantiated this allegation, and Hugh Kierig, a supervisor in the Planning Division of Metro Transit, verified that Ar-mentrout had given Harty instructions to watch and monitor plaintiff. Harty stated that Armentrout once talked about putting a monitoring device on plaintiffs telephone. In January 1994, plaintiff contacted Dianna Berry in the Personnel Department to discuss an unrelated matter. During their conversation, plaintiff told Berry that she had been documenting incidents that plaintiff believed to be discriminatory and that she knew people who could verify her allegations. Berry asked plaintiff to give her the names of the people and any documentation she had. On February 7, Harty and Kierig contacted Berry to discuss plaintiffs deteriorating work performance and what corrective actions could be taken. When questioned by Berry, Harty and Kierig attributed plaintiffs deteriorating performance to her relationship with Armentrout and his inappropriate comments to plaintiff. Harty and Kierig told Berry they had never reported Armentrout’s conduct because they were afraid to get involved.
Plaintiff eventually gave Berry the requested information on February 14. On February 23, Berry began an official investigation of plaintiffs allegations. As part of the investigation, Berry or other members of the Personnel Department interviewed thirteen past or present Metro Transit employees. These interviews generally confirmed plaintiffs allegations concerning Armentr-out’s racist conduct. Thereafter, Berry and Lloyd Rinderer, the Personnel Director, interviewed Armentrout to give him an opportunity to respond to the allegations. On March 2, Berry prepared a two-page report of the investigation, to which she attached all the interview notes. In her report, Berry concluded that “Mr. Armentrout’s conduct would be considered inappropriate, regardless of the circumstances,” and that “the criteria for determining racial harassment has been met.” Appellant’s App. at 254. Berry submitted her report to Rinderer, who then submitted it to Don Bown, the City Manager. Bown subsequently met with Ar-mentrout and, based on the information contained in the report, informed Armentrout that he would be fired if he did not resign. On March 25, Armentrout submitted his letter of resignation to Bown.
Plaintiff took a leave of absence from April 11 until the beginning of July. While on leave, she filed a grievance against Harty, which was investigated by Randall Hume, the newly appointed Director of Metro Transit. Hume concluded that the evidence did not suppoi’t plaintiffs allegations of either discrimination or retaliation by Harty, but he did advise plaintiff that, based on his assessment of the operating needs of Metro Transit, there would be a change in the organizational structure and plaintiff would have a different supervisor. When plaintiff returned to work in July, Rick Cain, the new Assistant Director of Metro Transit, became plaintiffs immediate supervisor.
Plaintiff contends that after she returned to work, various employees began retaliating against her and the other customer service clerks because of plaintiffs complaints against Armentrout. Plaintiff asserts that the retaliation began when one or more white employees reported plaintiff for illegally parking in a handicapped space in the employee parking lot, for which plaintiff received a ticket. Plaintiff also claims that various white employees made her work more difficult by failing to provide her with information in a timely fashion and by being rude to her. Plaintiff related her complaints to both Cain and Hume. At the same time, various Metro Transit employees, who called themselves “The Group,” complained to Hume and others about plaintiffs poor performance, among other things. Plaintiff believes that The Group intended to force her *1268 to resign through continual harassment. Hume took several steps to resolve the internal disputes in his office, which he viewed as arising largely from employee confusion over internal policies and procedures. Despite Hume’s efforts, the situation had not improved by the time plaintiff filed the present suit.
II.
Before determining whether plaintiffs evidence of a hostile work environment and retaliation are sufficient to survive summary judgment, we must first consider whether the two-page report prepared by Berry, and the interview notes attached thereto, are admissible evidence. The City argues that the interview notes attached to Berry’s report are inadmissible hearsay. Plaintiff contends that neither the report nor the notes are hearsay because they are offered against a party and constitute “a statement of which the party has manifested an adoption or belief in its truth.” Fed.R.Evid. 801(d)(2)(B).
“It is well settled in this circuit that we can consider only admissible evidence in reviewing an order granting summary judgment.”
Gross v. Burggraf Constr. Co.,
We review a district court’s evidentiary rulings for abuse of discretion.
See United States v. Davis,
Under Rule 801(d)(2)(B), evidence is not hearsay if it “is offered against a party and is ... a statement of which the party has manifested an adoption or belief in its truth.” The First Circuit recently applied 801(d)(2)(B) to a report similar to the one at issue here. In
Pilgrim v. Trustees of Tufts College,
The Pilgrim court explained that when determining whether a party has manifested a belief in the truth of a document, the test is “whether the surrounding circumstances tie the possessor and the document together in some meaningful way.” Id. (citations and internal quotation marks omitted). A document is sufficiently “tied” to the possessor “to the extent the adoptive party accepted and acted upon the evidence.” Id. In Pilgrim, the college president demoted the employee who allegedly had harassed the plaintiff. The court found that:
removing [the employee] from all supervisory duties was a serious enough action that we cannot but think that [the president] would not have carried this out unless he accepted the Report’s conclusions as the truth. As such, his acceptance of the contents of the Report and his implementation of its recommendations, without disclaimer, served as an adoption of the Report for the purposes of Rule 801(d)(2)(B).
Id. We adopt the First Circuit’s approach to adoptive admissions.
In this case, Donald Bown, the City Manager, would not have sought Terry Armentr-out’s resignation had he not believed Berry’s report. When he asked Armentrout for his *1269 resignation, Bown told Armentrout: “‘This is what I have got, this is the information that I have, it seems to be substantiated, so either you — you resign this afternoon or you will be terminated tomorrow morning.’ ” Appellant’s App. at 393. When Armentrout asked who was saying the damaging things about him, Bown gave him the names of several people, including Carol Gardener, Paula Gordon, and Vicki Harty. Thus, it seems apparent that Bown relied not only on Berry’s two-page report, but on the attached notes of witness interviews. While it is true that Bown need not have believed every statement in the report to reach the conclusion that Armentrout should resign, that fact goes to the weight of the evidence rather than its admissibility. Because Donald Bown accepted the documents and acted upon them, we hold that neither the two-page report nor the attached notes are hearsay, and are therefore admissible.
We turn, then, to the merits of plaintiffs hostile work environment claim. Hostile environment harassment occurs where a supervisor or co-worker’s conduct unreasonably interferes with an individual’s work performance or creates an intimidating, hostile, or offensive work environment.
See Meritor Sav. Bank, FSB v. Vinson,
Whether a work environment is hostile must be evaluated based on all the circumstances, which may include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”
Id.
at 23,
In order to determine whether an employer is liable for a hostile work environment created by a supervisor, we look to general agency principles.
See Meritor,
(1) A master is subject to liability for the torts of his servants committed while acting in the scope of their employment.
(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:
(a) the master intended the conduct or the consequences, or
(b) the master was negligent or reckless, or
(c) the conduct violated a non-delegable duty of the master, or
(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.
From these provisions, we have identified three bases for holding an employer liable: (1) if the conduct violating Title VII occurred within the transgressor’s scope of employment; (2) if the employer knew, or should have known about, the violation and failed to respond in a reasonable manner; or (3) if the transgressor acted with apparent authority or was aided in violating the statute by virtue
*1270
of their agency relationship with the employer.
See Bolden v. PRC, Inc.,
In recent eases, the Supreme Court has clarified the meaning of § 219(1) and (2)(d) of the Restatement (Second) of Agency, which relate to our first and third basis of employer liability.
1
Our cases previously found § 219(1), the scope-of-employment provision, largely inapplicable to harassment cases, except in the fanciful case that the employer had made such illegal harassment part of the employee’s job description.
See Hicks v. Gates Rubber Co.,
In its recent decisions, the Supreme Court confirmed that harassment by a supervisor is generally not conduct within the scope of employment.
See Burlington Indus. v. Ellerth,
— U.S. -, -,
Although
Burlington
and
Faragher
involved sexual harassment, the principles established in those cases apply with equal force to this case of racial harassment for a number of reasons. First, we take the counsel of
Faragher
itself, which expressed a preference for harmonizing the standards applied in eases of racial discrimination and sexual discrimination.
See Faragher,
The second basis for liability, not addressed in either Burlington or Faragher, is employer negligence. The employer may be held liable if it knew, or should have known, about the hostile work environment and failed to respond in an appropriate manner. The evidence shows that, before she lodged a formal complaint with the Personnel Department, plaintiff complained about Armentrout’s conduct to two Metro Transit supervisors (Harty and Kierig) who did nothing. Plaintiff also complained to the head of the department (Klika), who had an informal talk with Armentrout, but did not report the matter to the Personnel Department. Moreover, even absent plaintiffs complaints to supervisors in the department, the evidence suggests that the hostile work environment may have been so pervasive that the City should have known about it before plaintiff lodged her formal complaint with the Personnel Department in February 1994. Even though *1271 the Personnel Department subsequently investigated plaintiffs allegations carefully, and the City Manager fired the harasser based on the Personnel Department’s investigation, a reasonable jury could find that the City’s response was neither timely nor reasonable because it knew or should have known of the hostile work environment before February 1994. Thus, the evidence, viewed in the light most favorable to the plaintiff, could support a finding that the City is liable on the second basis of employer liability. We reverse this portion of the district court’s opinion.
The third avenue of employer liability, based on the Restatement (Second) of Agency § 219(2)(d), was explored fully in Burlington and Faragher. For reasons contained in those opinions, the Court explained that applying § 219(2)(d) to the Title VII context meant that:
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Faragher,
The district court did not examine the third basis for employer liability. On remand, it must apply the language above in order to determine whether Metro Transit can be held liable under this third basis. The operative questions will be whether Ar-mentrout had sufficient control over the plaintiff to be considered her supervisor, whether Armentrout took tangible employment action against her, and whether the plaintiff could have avoided the harm.
We turn, finally, to the plaintiffs claim of retaliation. A central portion of plaintiffs retaliation claim is an extension of other hostile environment claims. Although plaintiffs allegations of a hostile work environment concerned only Armentrout’s conduct, plaintiff contends that his departure did not alleviate the hostile environment. She argues that the City did not take sufficient steps to eliminate racial hostility and assimilate her back into the workplace after her leave of absence. Whether the City responded appropriately to the information it had concerning the extent and causes of the hostile work environment is a matter better addressed in connection with plaintiffs hostile work environment claim.
To the extent that plaintiff alleges a true retaliation claim, ie., that the City retaliated against her for engaging in protected activity, we agree "with the district court that, even when viewed in the light most favorable to plaintiff, the evidence does not support a retaliation claim. Therefore, the district court properly granted summary judgment in favor of the City on plaintiffs claim of retaliation.
The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED in part, REVERSED in part, *1272 and the case is REMANDED for further proceedings consistent with this opinion.
Notes
. Although those Supreme Court cases were not decided at the time of the district court’s decision in this case, they apply with full force.
See Harper v. Virginia Dept. of Taxation,
. The plaintiff, relying on a misinterpretation of our opinion in
Sauers v. Salt Lake County,