* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 29 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

TINA POE, Plaintiff-Appellant,

v. SHARI’S MANAGEMENT CORPORATION, doing business as Shari’s Restaurant,

Defendant-Appellee. No. 98-8061 (D.C. No. 98-CV-20-D) (D. Wyo.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Plaintiff Tina Poe appeals the district court’s gra nt of summary judgment in favor of her former employer on her claims brought pursuant to Title VII of the Civil Rights Act of 1964. Because plaintiff did no t raise a genuine fact issue regarding the existence of a hostile work environme nt, but did raise a genuine fact issue regarding her termination from work after complaining about an incident of sexual harassment, we affirm in part and reverse in part, and remand the case for further proceedings. Plaintiff was employed as a baker from November 3, 1996, to November 24, 1996, by defendant Shari’s Management Corporation in Cheyenne, Wyoming. Because of day care concerns, plaintiff w as permitted to work a threeday schedule. She alleges that on November 19, 199 6, the shift supervisor, John Lohman, had an altercation with a waitress regardin g her hairnet. According to plaintiff, Lohman then came into the storeroom and said to her: “I have servers for bitches (sic). I have a baker that is a bitch. You are a fucking bitch. I hate working with all these women. Women are nothing but stupid fucking bitches.” Appellant’s App. at 31. Plaintiff testified she fe lt threatened by this statement, but acknowledged she might have been overly sensiti ve at this time due to a problem with her husband. See id. at 30, 32. Although upset, plaintiff completed baking her pies before going home.-3-

Two days later, plaintiff complained to the managerabout Lohman’s conduct, informing the manager she would not work d uring Lohman’s shift and that Lohman could bake his own pies. The manager t old her she could not dictate with whom she would work, but promised to take care of the incident. On plaintiff’s next scheduled day of work, November24, 1996, she called the manager to find out if he wanted her to work. The manager told her to come in at that time. Because of some event at home, pl aintiff called the manager to ask if she could come in several hours later. The manager told her she needed to report immediately, and that she needed to start wo rking six days a week to maintain pie freshness. When plaintiff informed th e manager she was unable to meet this requirement, he told her he would find an other baker. Plaintiff testified she then asked the manager whether the new schedule had anything to do with her complaint about Lohman’s conduct, to which the mana ger laughed and said “Whatever. Forget it. I’ll find another baker.” Id. at 37. Plaintiff brought this discrimination action agains t defendant, alleging she had been subjected to a hostile work environment ba sed on her sex, and had been terminated in retaliation for complaining about the harassment. The district court granted summary judgment for defendant, finding that Lohman’s conduct did not create a hostile work environment as a matter of law, and that plaintiff’s evidence did not show the employer’s reasons for her termination were pretextual.-4-

On appeal, plaintiff argues the evidence was suffic ient to raise factual issues as to both the hostile work environment issu e and the retaliation issue. We review a grant of summary judgment de novo, applyin g the same standard as the district court. See Siemon v. AT & T Corp. , 117 F.3d 1173, 1175 (10th Cir. 1997). Summary judgment is appropriate if “there i s no genuine issue as to any material fact and . . . the moving party is entitle d to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We examine the factu al record and the inferences reasonably drawn therefrom in the light most favorable to the party opposing summary judgment. See Siemon , 117 F.3d at 1175. Sexual harassment is actionable under a hostile work environment theory when the harassing conduct is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 67 (1986) (quotations omitted). However, “not all workplace conduct that may be described as ‘harassment’ affects a ‘term, condition, or priv ilege’ of employment within the meaning of Title VII.” Id. The conduct must be both objectively and subjecti vely abusive. See Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21-22 (1993). In Harris , the Court articulated the following nonexhaustive list of factors to be considered in determining whether sexually ha rassing conduct is sufficiently abusive as to create a hostile work environment: “ frequency of the discriminatory-5-

conduct; its severity; whether it is physically thr eatening or humiliating, or a mere offensive utterance; and whether it unreasonably in terferes with an employee’s work performance.” Id. at 23. Here, the incident with Lohman was a singl e occurrence, resulting from a heated argument with a nother employee, which did not involve a physical threat to plaintiff, and whi ch did not prevent her from completing her work after it occurred. Although Lo hman’s conduct was clearly inappropriate, we agree with the district court that it was not so serious or pervasive, in itself, as to create a cause of actio n for a hostile work environment under Title VII. We do not agree, however, that plaintiff failed to raise a genuine issue as to whether she was terminated in retaliation for compl aining about the incident. A prima facie case of reprisal is made by showing “(1 ) protected employee action; (2) adverse action by an employer either after or c ontemporaneous with the employee’s protected action; and (3) a causal conne ction between the employee’s action and the employer’s adverse action.” Morgan v. Hilti, Inc. , 108 F.3d 1319, 1324 (10th Cir. 1997). Upon such a showing, the bu rden shifts to the defendant to produce a legitimate, nonretaliatory reason for its employment decision. See Conner v. Schnuck Markets, Inc. , 121 F.3d 1390, 1395 (10th Cir. 1997). The burden then shifts back to the plaintiff to demonst rate that the proffered reason was not the true reason for the employer’s decision , but instead, that the decision-6-

was made for retaliatory reasons. This burden may be met either by direct evidence of the employer’s retaliatory motive or by evidence that the proffered reason is pretextual. See id. at 1396. Here, plaintiff made a prima facie case of retaliat ion by showing that her schedule was changed immediately after she complain ed about the incident with Lohman. See id. at 1395 (noting causal connection may be inferred from adverse action following closely after protected activity). Defendant, in turn, identified a legitimate nonretaliatory reason for changing plain tiff’s schedule: concerns about pie freshness. The question, then, is whether plai ntiff presented sufficient evidence to refute the proffered reason, by showing either defendant’s retaliatory motive or that its identified reason was a pretext for retaliation. “[P]rotected conduct closely followed by adverse ac tion may justify an inference of retaliatory motive.” Marx v. Schnuck Markets, Inc. , 76 F.3d 324, 329 (10th Cir. 1996). Although not a per se rule, such a pattern of conduct can preclude summary judgment despite the employer’s articulation of a legitimate reason for its actions. See Conner , 121 F.3d at 1397-98 (explaining that although temporal proximity between protected activity and s ubsequent discipline could, as in Marx , rebut an employer’s proffered reason and preclude summary judgment, such an analysis had to be made on a case-by-case b asis).-7-

Here, the change to plaintiff’s schedule was first raised immediately after she engaged in the protected activity, giving rise to an inference of retaliatory motive. This is not a case in which the challenged course of conduct had already commenced before the protected activity took place. Cf. Morgan , 108 F.3d at 1324 (holding temporal proximity insufficient to sh ow pretext when disciplinary action had begun before protected activity and adve rse employment decision “simply completed the disciplinary process already set in motion”). Further, although the baker before plaintiff had worked five days a week, the manager imposed a six-day requirement on plaintiff. No attempt was made to accommodate plaintiff’s child care needs, despite t he manager’s willingness to do so prior to plaintiff’s harassment complaint. In addition, there was evidence that the manager wa s unresponsive to plaintiff’s harassment complaint, telling her he “d oubt[ed] it very seriously that’s the way it happened.” Appellant’s App. at 35. Alt hough not free from ambiguity, it is significant that the manager did not deny pla intiff’s question whether her changed schedule was related to the harassment comp laint, but merely laughed and said “whatever,” which might be construed as an admission. Based on the foregoing, a reasonable jury could conclude that pl aintiff’s changed schedule was imposed in retaliation for her complaint about Lohm an’s conduct, and that the-8-

manager knew that plaintiff would be unable to comp ly with the new requirements. Summary judgment, therefore, was inappropriate on this issue. The judgment is AFFIRMED in part and REVERSED in part, and the case is REMANDED for further proceedings.

Entered for the Court
Mary Beck Briscoe Circuit Judge