### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk March 2, 1998

TO: ALL RECIPIENTS OF THE CAPTIONED OPINION
RE: 96-3147, Witt v. Roadway Express February 27, 1998
The published opinion contains a typographical erro r on page 7, in the sixth sentence of the paragraph continued from page 6, to ward the center of the slip opinion page. The sentence containing the error rea ds as follows: He is entitled to the reasonable inference that “th e middle of March” means the 15th of March, which is a month of thirtydays. The corrected sentence should read : He is entitled to the reasonable inference that “th e middle of March” means the 15th of March, which is a month of thirty -one days. Please make the appropriate correction to your copyof the opinion. Very truly yours, Patrick Fisher, Clerk
By: Keith Nelson Deputy Clerk

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

### FEB 27 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHARLES JAMES WITT, Plaintiff-Appellant, v. ROADWAY EXPRESS, JIM KASPERSKI, TEAMSTERS LOCAL No. 41, and WARREN STEVENS, Defendants-Appellees. No. 96-3147

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. No. 94-2247-GTV)
Robert S. Ukeiley, Boulder, Colorado, for Plaintiff -Appellant. Donald R. Aubry (John P. Hurley and Steven A. Fehr, with him on the brief), Kansas City, Missouri, for Defendants-Appellees Teamsters Local No. 41 and Warren Stevens. Daniel B. Denk (Carl A. Gallagher with him on the b rief), Kansas City, Kansas, for Defendants-Appellees Roadway Express and Jim Ka sperski.
Before ANDERSON, EBEL, and KELLY, Circuit Judges.
KELLY, Circuit Judge.- 2 -

Plaintiff-Appellant Charles James Witt brought this action against Defendants-Appellees Roadway Express and the Teamst ers, alleging racial discrimination in violation of Title VII and § 1981 , common law harassment, and unfair representation by the union. The district c ourt disposed of Mr. Witt’s claims as follows: (1) it granted summary judgment against Mr. Witt on the Title VII claims against both Roadway and the Teamsters, on the basis that they were untimely; (2) it applied a six-month limitation per iod to Mr. Witt’s fair representation claim, and granted summary judgment against Mr. Witt because the claim was time-barred; (3) it dismissed Mr. Witt’s state law harassment claims under Fed. R. Civ. P. 12(b)(6), on the ground that the members of the Teamsters who harassed Mr. Witt were not acting as agents or representatives of the union; and (4) after allowing the § 1981 claims to proceedto a jury trial, at the close of the plaintiff’s evidence the court granted judgmentas a matter of law in favor of defendants, ruling that the instances of discrimination proved at trial were not sufficiently race-based or pervasive to support a v erdict in Mr. Witt’s favor. See Witt v. Roadway Express , 880 F. Supp. 1455, 1461-65 (D. Kan. 1995). Mr. W itt appeals each ruling. We exercise jurisdiction unde r 28 U.S.C. § 1291, affirm in part, reverse in part, and remand. Background Our review of each of the district court’s rulings requires us to view the- 3 -

allegations and evidence in the light most favorabl e to the non-movant. See Bell v. United States , 127 F.3d 1226, 1228 (10th Cir. 1997) (reviewing g rant of summary judgment); Grossman v. Novell, Inc. , 120 F.3d 1112, 1118 (10th Cir. 1997) (reviewing Rule 12(b)(6) dismissal); Taylor v . Cooper Tire & Rubber Co. , No. 96-4084, 1997 WL 755274, at *3 (10th Cir. Dec. 5, 1997) (reviewing judgment as a matter of law). Accordingly we prese nt the factual background in the light most favorable to the plaintiff, drawing all reasonable inferences in his favor. Mr. Witt, an African-American, worked for Roadway E xpress as a truck driver from 1987 to 1993. After a move from Memphi s to Kansas City, his work situation began to deteriorate. Mr. Witt attempted to discuss with the local Teamsters business agent a problem he had had in Me mphis, but was told by Mr. Stevens, the shop steward, not to bring his problem s to the business agent. When Mr. Witt requested that the Teamsters in Kansas City recognize his previous time in the union in Memphis, Mr. Stevens told Mr. Witt to forget about his previous time and start over by paying his initiation fee ag ain. Mr. Witt testified that good trucking runs were consistently given to drivers mo re junior than he because of his color. When he approached Mr. Stevens about th is he was told to “leave it alone.” R. Doc. 128 at 119. Mr. Stevens refused t o question Roadway or to file a grievance on Mr. Witt’s behalf.- 4 -

Dissatisfied with union representation, Mr. Witt re voked his authorization to have his union dues deducted from his paycheck. Mr. Stevens and other union members began pressuring Mr. Witt to have his dues deducted. On two separate occasions he found notes on the windshield of his c ar at work, written on letterhead of the Knights of the Ku Klux Klan. One said, “Pay your dues, n——.” II Supp. R. 91. The words of the second note on Kl an letterhead were washed away by rain. Mr. Witt’s car was vandalized on sev en or eight occasions in the Roadway parking lot. His home was burglarized, butthe only things taken were papers having to do with his problems with Roadway and the Teamsters. He received threats and racial slurs from other named drivers on occasion between 1990 and 1992. In one incident in Burlington, Colo rado, several drivers called him into a motel room and attempted to coerce him i nto dropping his complaints against the union, calling him a n—— and referring to his being black and needing to leave things alone. When Mr. Witt complained to officials at Roadway an d the Teamsters, he received no response. Toward the end of 1992, whenMr. Witt complained about an unfair trucking assignment, a Roadway coordinato r said, “F— that n——, he don’t have no rights.” R. Doc. 128 at 111. On ano ther occasion in 1993, when Mr. Kasperski telephoned Mr. Witt’s home, Mr. Witt’ s girlfriend took the call. When she told Mr. Kasperski that Mr. Witt was not h ome, Mr. Kasperski became- 5 -

hostile and said, “Huh. Well where’s this n—— at?” III Supp. R. 366. Mr. Witt filed a complaint with the Kansas Human Ri ghts Commission, which forwarded it to the Equal Employment Opportun ity Commission (EEOC). The EEOC sent Mr. Witt separate right-to-sue letter s, both dated January 27, 1994, regarding Roadway and the Teamsters. They we re mailed January 27 and 28, respectively, without return receipts requested . Although Mr. Witt received the Roadway right-to-sue letter in late January or early February, 1994, he stated in an affidavit that he did not receive the right-t o-sue letter regarding the Teamsters “until the middle of March.” I R. doc. 3 8, exh. A, ¶ 10. Mr. Witt’s Title VII suit against the Teamsters was deemed to have been filed June 13, 1994. The Teamsters moved for summary judgment, arguing the district court should apply a presumption that Mr. Witt received the right-to-sue letter within five days of its mailing. If Mr. Witt received the letter five days after January 28, 1994, then his ninety day period to file suit expired May 3, 1994, and his June 13 lawsuit against the Teamsters was untimely. See 42 U.S.C. § 2000e-5(f)(1) (1994). If, however, Mr. Witt rece ived the right-to-sue letter in mid-March, as his affidavit states, then his suit w as timely. The district court applied a five-day presumption of receipt and foundthat the Title VII claim against the Teamsters was filed beyond the ninety-d ay limit of 42 U.S.C. § 2000e5(f)(1). The district court refused to equitably t oll the ninety-day limitations- 6 -

period for both the Teamsters and the Roadway Title VII claims.

Discussion We review each issue in this appeal de novo. See Bell , 127 F.3d at 1228;
Grossman , 120 F.3d at 1118; Coleman v. B-G Maintenance Mgmt . of Colo., Inc. , 108 F.3d 1199, 1205 (10th Cir. 1997). Summary judgment is appropriate only when the evide nce, including any affidavits, viewed in the light most favorable to t he non-movant, demonstrates that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R . Civ. P. 56(c). A “material” fact is one “that might affect the outcome of the s uit under the governing law,” and a “genuine” issue is one for which “the evidenc e is such that a reasonable jury could return a verdict for the nonmoving party .” Anderson v. Liberty Lobby,
Inc. , 477 U.S. 242, 248 (1986). In applying these stan dards we draw all reasonable inferences from the evidence in favor of the non-movant. See Aramburo v. Boeing Co. , 112 F.3d 1398, 1402 (10th Cir. 1997).

A. Title VII Under 42 U.S.C. § 2000e-5(f)(1) a complainant has n inety days in which to file suit after receipt of an EEOC right-to-sue letter. Mr. Witt argues that his- 7 -

affidavit, stating that he received the right-to-su e letter regarding the Teamsters in mid-March, creates a genuine issue of material factprecluding summary judgment. We agree. The ninety-day limit begins t o run on the date the complainant actually receives the EEOC right-to-sue notice, see Williams v. Southern Union Gas Co. , 529 F.2d 483, 487 (10th Cir.), cert. denied , 429 U.S. 959 (1976), making that date a material fact. Mr. Witt has created a genuine issue as to the date of receipt by submitting evidence on which a reasonable jury could return a verdict for him. He is entitled to the re asonable inference that “the middle of March” means the 15th of March, which is a month with thirty-one days. If he received the right-to-sue letter March15, then his complaint was due June 13, the day it was deemed filed. Even if he r eceived the letter on March 13 or 14, his complaint would still have been timely o n June 13, because June 11 and 12 were a Saturday and Sunday. See Fed. R. Civ. P. 6(a). Teamsters Local No. 41 argues that its certified ma il receipt, indicating the right-to-sue letter was mailed January 28, 1994, entitles it to a presumption that Mr. Witt received the letter within five days. A r ebuttable presumption of receipt does arise on evidence that a properly addressed pi ece of mail is placed in the care of the postal service. See Nikwei v. Ross School of Aviation , 822 F.2d 939, 941 (10th Cir. 1987); Godfrey v. United States , 997 F.2d 335, 338 (7th Cir. 1993); Anderson v. United States , 966 F.2d 487, 491 (9th Cir. 1992). Because the- 8 -

presumption is rebuttable, however, evidence denyin g receipt creates a credibility issue that must be resolved by the trier of fact. See Rosenthal v. Walker , 111 U.S. 185, 193-94 (1884); Anderson , 966 F.2d at 491-92; 9 Wigmore, Evidence § 2519 (Chadbourn rev. 1981 and Best Supp. 1997). Mr. Witt has presented evidence which could reasonably be found to rebut the presumption. The district court wrote, “Plaintiff has not presented any evidence to rebut the presumption or to establish the actual receipt date.” Witt , 880 F. Supp. at 1461. On the contrary, Mr. Witt has done just that . It was error for the court to ignore Mr. Witt’s affidavit. We reinstate his Titl e VII claim against the Teamsters and Warren Stevens. Mr. Witt argues that his Title VII claim against Ro adway and Jim Kasperski should also be reinstated because the district court erred in refusing to equitably toll the ninety-day filing period. “In this circui t, a Title VII time limit will be tolled onlyif there has been active deception of the claimantregarding procedural requirements.” Jarrett v. U.S. Sprint Communicatio ns Co. , 22 F.3d 256, 260-61 (10th Cir.), cert. denied , 513 U.S. 951 (1994). Mr. Witt argues that a lett er from the Kansas Human Rights Commission, telling him it had closed his case but that he could have their action reviewed by the EEOC, co nfused him into thinking his ninety days would not begin to run until the EEOC h ad reviewed the Kansas action. We agree with the district court that this letter did not actively mislead- 9 -

Mr. Witt or lull him into inaction. The letter was accurate in every respect. Furthermore, it referred only to his claim against the Teamsters, and therefore could not reasonably have been construed to alter the status of his claim against Roadway. The letter falls far short of the standar d of active deceit that our cases require. See Johnson v. United States Postal Service , 861 F.2d 1475, 1480-81 (10th Cir. 1988), cert. denied , 493 U.S. 811 (1989).

B. Duty of Fair Representation Mr. Witt argues the district court erroneously appl ied a six-month limitations period for unfair labor practices inste ad of Kansas’s three-year statute of limitations for contract actions. In DelCostell o v. International Bhd. of
Teamsters , 462 U.S. 151, 169-171 (1983), the Supreme Court h eld that the sixmonth statute of limitations from § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b) (1994), governs hybrid claims by employees against an employer and a union. A hybrid claim refers to an employee’ s interdependent dual claims against his employer for breach of the collective b argaining agreement, and against his union for unfair representation. Mr. W itt argues DelCostello does not apply to an unfair representation claim standing al one. We hold that it does. The rationale supporting Del Costello’s application of the six-month limitation period to unfair represent ation claims in the hybrid- 10 -

context is equally applicable when the claim is bro ught alone. First, DelCostello held that the unfair representation claim exhibits a “family resemblance” to unfair labor practice claims that “is undeniable,” and not ed the “substantial overlap” between the claims. DelCostello , 462 U.S. at 170. “Duty of fair representation claims are allegations of unfair, arbitrary, or dis criminatory treatment of workers by unions—as are virtually all unfair labor practic e charges made by workers against unions.” Id. Second, unfair representation claims involve the same balance of interests at stake in hybrid claims: the national interest in the finality of private bargaining arrangements balanced against the individual intere st in setting aside an unjust settlement. Every unfair representation claim impl icates this balance because it alleges the union failed to represent an individual employee in a bargaining or grievance situation. See George v. Local Union No. 639, Int’l Bhd. of Teams ters , 100 F.3d 1008, 1014 (D.C. Cir. 1996); Barnett v. Un ited Air Lines, Inc. , 738 F.2d 358, 363 (10th Cir.), cert. denied , 469 U.S. 1087 (1984). Third, the six-month limitation period is even more appropriate to the unfair representation claim when it stands alone, b ecause its companion in the hybrid suit is essentially a contract claim to whic h a longer state-law limitations period would ordinarily apply. See DelCostello , 462 U.S. at 165. If the policies in favor of the six-month limitation period are str ong enough to override the- 11 -

contract limitations period when both claims are jo ined, surely those policies apply to the unfair representation claim standing a lone. See Erkins v. United Steelworkers of America , 723 F.2d 837, 838-39 (11th Cir.), cert. denied , 467 U.S. 1243 (1984). In holding that a six-month statute o f limitation applies to unfair representation claims, we follow the majority of ou r sister circuits as well as the trend in our own cases on related issues. See Arnold v. Air Midwest, Inc. , 100 F.3d 857, 859 (10th Cir. 1996); Rucker v. St. Louis Southwestern Ry. , 917 F.2d 1233, 1237-38 (10th Cir. 1990); Barnett , 738 F.2d at 362-64; George , 100 F.3d at 1014; Richardson v. United Steelworkers of Am. , 864 F.2d 1162, 1167 (5th Cir. 1989), cert. denied , 495 U.S. 946 (1990); Eatz v. DME Unit of Local Un ion No.
3 , 794 F.2d 29, 33 (2d Cir. 1986); Peterson v. Kenne dy , 771 F.2d 1244, 1251 (9th Cir. 1985), cert. denied , 475 U.S. 1122 (1986); Adkins v. International Uni on of Elec., Radio & Mach. Workers , 769 F.2d 330, 335 (6th Cir. 1985); Erkins , 723 F.2d at 838-39.
C. State Law Harassment Mr. Witt argues the district court erred in determi ning that his co-workers were not acting as representatives or agents of the union when they harassed him. We review de novo a district court’s dismissal for failure to state a claim. See
Grossman , 120 F.3d at 1118. A Rule 12(b)(6) dismissal will be upheld “‘only when it appears that the plaintiff can prove no setof facts in support of the claims- 12 -

that would entitle the plaintiff to relief.’” Id. (quoting Roman v. Cessna Aircraft
Co. , 55 F.3d 542, 543 (10th Cir. 1995)). We accept as true all well-pleaded facts, as distinguished from conclusory allegations, and c onstrue them in the light most favorable to the plaintiff. See Swanson v. Bixler , 750 F.2d 810, 813 (10th Cir. 1984). According to the general rule, Local 41 is not liab le for the acts of coworkers who are not agents or representatives of th e union, and we see no reason for exception in this case. See Kux Mfg. Co. v. NLRB , 890 F.2d 804, 809 (6th Cir. 1989); Anspach v. Tomkins Indus., Inc. , 817 F. Supp. 1499, 1514 (D. Kan. 1993). The only allegation Mr. Witt has made of ha rassment by a union representative is the following statement in his af fidavit: “The harassment began with, and was condoned by, the Union Representative , Warren Stevens, and was perpetuated by my co-workers.” I R. doc. 31, exh. A, ¶ 7. Even if this affidavit could be considered in deciding the Rule 12 motion, it is too conclusory to state a claim of harassment by union representatives. See Jojola v. Chavez , 55 F.3d 488, 494 & nn.7-8 (10th Cir. 1995). It states no fact at all. Without an allegation of some factual occurrence that could constitute haras sment by a union representative, the claim must be dismissed.- 13 - D. Section 1981 Mr. Witt argues the evidence of race discriminationhe introduced at trial was sufficient to allow his claim to go to the juryunder a hostile work environment theory of race discrimination. Fed. R. Civ. P. 50(a)(1) provides for entry of judgment as a matter of law if “there is n o legally sufficient evidentiary basis for a reasonable jury to find for that party. ” Judgment as a matter of law is appropriate only if the evidence “‘points but one w ay and is susceptible to no reasonable inferences supporting’ the nonmoving party.” Riggs v. Scrivner, Inc. , 927 F.2d 1146, 1149 (10th Cir.) (quoting Zimmerman v. First Fed. Sav. & Loan
Ass’n , 848 F.2d 1047, 1051 (10th Cir. 1988)), cert. den ied , 502 U.S. 867 (1991). “We must construe the evidence and inferences most favorably to the nonmoving party, and refrain from weighing the evidence, pass ing on the credibility of witnesses, or substituting our judgment for that of the jury.” Magnum Foods, Inc. v. Continental Cas. Co. , 36 F.3d 1491, 1503 (10th Cir. 1994). In reviewin g the grant of judgment as a matter of law in a discrimin ation case, “the question for the appellate court is ‘simply whether the evidence . . . was sufficient to justify a reasonable jury in finding discrimination.’” Honce v. Vigil , 1 F.3d 1085, 1088 (10th Cir. 1993) (omission in original) (quoting Lo we v. J.B. Hunt Transport,
Inc. , 963 F.2d 173, 174 (8th Cir. 1992). The plaintiff in a race discrimination claim must e stablish that “under the- 14 -

totality of the circumstances (1) the harassment wa s pervasive or severe enough to alter the terms, conditions, or privilege of employ ment, and (2) the harassment was racial or stemmed from racial animus.” Bolden v. PRC, Inc. , 43 F.3d 545, 551 (10th Cir. 1994) (citation omitted), cert. deni ed , 116 S. Ct. 92 (1995). Pervasiveness and severity are independent and equa l grounds on which to support violations of § 1981. See Meritor Savings Bank, FSB v. Vinson , 477 U.S. 57, 67 (1986); Smith v. Norwest Financial Acceptanc e, Inc. , 129 F.3d 1408, 1413 (10th Cir. 1997). Although Mr. Witt has not specif ically argued that the evidence meets the severity standard, in the interest of jus tice we will analyze his claim under both standards. The Civil Rights Act of 1991, Pub. L. No. 102-166 § 2, amended 42 U.S.C. § 1981 to provide a cause of action for racial hara ssment. Because the effective date of the amendment was November 21, 1991, we mayconsider only acts of racial animus after that date to establish Mr. Witt ’s § 1981 claim. See Landgraf v. USI Film Prods. , 511 U.S. 244, 286 (1994). At trial Mr. Witt intr oduced evidence of the following two instances of racial animus in the relevant time period: (1) the 1992 expletive incident, and (2) th e 1993 telephone incident. To fulfill his burden under the pervasiveness stand ard, the “plaintiff must show more than a few isolated incidents of racial e nmity.” Id. (quotation marks ommitted). “Instead of sporadic racial slurs, ther e must be a steady barrage of- 15 -

opprobrious racial comments.” Id. ; see Hicks v. Gates Rubber Co. , 833 F.2d 1406, 1412-13 (10th Cir. 1987). Considering the tw o-year period over which the two relevant incidents occurred, they do not, as a matter of law, constitute “a steady barrage of opprobrious racial comments.” Bo lden , 43 F.3d at 55. Although socially inexcusable, they are “a few isol ated incidents of racial enmity,” id. , which the law cannot redress. Mr. Witt argues th ese incidents were steady and pervasive in light of the fact that Mr. Witt was on the road much of the time, and the only opportunities to harass him aros e when he came in off the road. We are constrained to conclude, however, that even with limited opportunity for harassment, two incidents such as these in two year s are insufficient to establish a racially hostile work environment under the pervasi veness prong of Meritor

. Even though not pervasive, the incidents could viol ate § 1981 if there were sufficient evidence that they were so severe as “‘t o alter the conditions of [Mr. Witt’s] employment and create an abusive working en vironment.’” Hirschfeld v. New Mexico Corrections Dep’t , 916 F.2d 572, 575 (10th Cir. 1990) (quoting Meritor , 477 U.S. at 67 (quoting Henson v. City of Dundee , 682 F.2d 897, 902 (11th Cir. 1982))). Although both incidents are co nsidered, the 1992 expletive incident is certainly the more severe, and where th e analysis stands or falls not on frequency but on the degree of severity, the 1993 t elephone incident adds little. Mr. Witt must demonstrate that the harassment was s evere under both an- 16 -

objective and subjective component. See Harris v. Forklift Systems, Inc. , 510 U.S. 17, 21-22 (1993); Smith , 129 F.3d at 1408. He demonstrates neither. Firs t, there is insufficient evidence to establish the subjective prong of the severity standard. See Harris , 510 U.S. at 21-22. “Plaintiff must subjectively believe that [the harasser’s] conduct was so severe that it created an abusive or hostile environment.” Smith v. Norwest Fin. Acceptance, In c. , 129 F.3d 1408, 1413 (10th Cir. 1997). Mr. Witt testified as follows ab out the effect of the 1992 comment on him: “And I just kind of shrugged it off and walked away.” II Supp. R. 109. Although the comment need not have inflict ed psychological injury on Mr. Witt, see Harris , 510 U.S. at 22, “if the victim does not subjectiv ely perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title V II violation.” Id. at 21-22. Second, the evidence falls short of the objective s everity requirement. We are instructed to view the alleged harassment in th e totality of the circumstances to determine if it could have created a “hostile” o r “abusive” environment. Id. at 23. We consider the nature and context of the inci dents, see Gross v. Burggraf
Constr. Co. , 53 F.3d 1531, 1537 (10th Cir. 1995), keeping in m ind that “[t]he mere utterance of a statement which ‘“engenders off ensive feelings in an employee” would not affect the conditions of employ ment to [a] sufficiently significant degree to violate Title VII.’” Id. (quoting Meritor , 477 U.S. at 67)- 17 -

(citations omitted in original; second brackets in original). The following relevant circumstances inform our judgment that the incidents are not sufficiently

severe. Neither comment was directed at Mr. Witt, and in th e 1992 incident the speaker did not know Mr. Witt was within earshot. The fact that the insult was only inadvertently overheard indicates a lower degr ee of animosity and severity than is present in the typical case, in which a har assing supervisor deliberately inflicts the harassment on the victim. Further, th e supervisor who made the remark immediately apologized of his own volition. Certainly this abates, at least somewhat, its severity. As to the setting of the incident, it did not occurin a place in which Mr. Witt was forced to stay and subject himself to humi liation. In Smith , the harassment took place in the victim’s small workspa ce so she was unable to escape and others could not help but overhear, creating a situation of public degradation. See Smith , 129 F.3d at 1414. This was held to contribute to the severity of the incidents. See id. Here, however, the comment ocurred in a place in which, after receiving the apology, Mr. Witt cou ld walk away. Although the dispatcher certainly heard the remark, there is no indication that any of Mr. Witt’s fellow drivers heard it. As to the context of the words, Mr. Witt had just c omplained about a job- 18 -

assignment. When the supervisor made his comment, in a vulgar way and to another employee, its reasonable import was that Mr . Witt had no right to another job assignment. No matter how incorrect and offens ive the supervisor was, this context informs the bare words of his statement. In view of this context, the evidence of these inci dents alone is insufficient to establish harassment so severe as to “‘to alter the conditions of [Mr. Witt’s] employment and create an abusive working environment.’” Hirschfeld , 916 F.2d at 575 (quoting Meritor , 477 U.S. at 67 (quoting Henson , 682 F.2d at 902)). See Creamer v. Laidlaw Transit, Inc. , 86 F.3d 167, 170-71 (10th Cir.) (affirming determination that one incident was insufficiently severe to create a hostile working environment where sexual harassment incident began in a dispatcher’s office and ended with the harasser pinning the vict im onto a pool table in a drivers’ lounge), cert. denied , 117 S. Ct. 437 (1996). We reject Defendants’ argument that affirming the j udgment as a matter of law on Mr. Witt’s § 1981 claim renders Mr. Witt’s T itle VII claim legally inadequate as well. In his Title VII claim, if nottime-barred, Mr. Witt may be able to rely on acts prior to November 21, 1991, su ch as both Ku Klux Klan notes, the incident in Burlington, Colorado, and other matters, in making his showing of racial motivation. See 42 U.S.C. § 2000e-2(m) (1994). Mr. Witt argues that the improper entry of summary judgment against his- 19 -

Title VII claim prejudiced his § 1981 claim, allowi ng the most heinous instances of racial hatred to be admitted only for the limite d purposes of Fed. R. Evid. 404(b). We reject this claim as well, because even if the Title VII claim had gone to trial, pre-1991 acts would have still been of li mited Rule 404(b) significance for purposes of the § 1981 claim. AFFIRMED in part, REVERSED in part, and REMANDED.