Jackson v. Kan. City Kan. Pub. Sch. Unified Sch. Dist. No. 500

MARCIA L. JACKSON, Plaintiff - Appellant, v. KANSAS CITY KANSAS PUBLIC SCHOOLS UNIFIED SCHOOL DISTRICT NO. 500, Defendant - Appellee.

No. 19-3094

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

January 7, 2020

(D.C. No. 2:18-CV-02046-DDC)

(D. Kan.)

ORDER AND JUDGMENT^*

Before LUCERO, O'BRIEN, and CARSON, Circuit Judges.

Marcia Jackson appeals from the district court's grant of summary judgment in favor of her former employer, Kansas City Kansas Public Schools Unified School District No. 500 ("USD 500"), on her harassment, retaliation, and discrimination claims. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

Jackson started working for USD 500 in 2016. She alleges that in September 2016, she was routinely sexually harassed by her co-worker, Eugene Swygert, but she did not report his conduct to USD 500. Beginning in October 2016, Jackson's co-worker Keyannah Johnson bullied and threatened her. Jackson alleges she filed a complaint about Johnson's conduct with Lenora Miller, USD 500's Executive Director of Operations, but Miller took no corrective action. Jackson claims Johnson's harassment later became sexual—Johnson would rub her body against Jackson—but Jackson admits the October 2016 complaint did not address any alleged sexual misconduct by either Swygert or Johnson.

In December 2016, Swygert and Jackson had a verbal altercation. According to Jackson's affidavit about the incident, Swygert became angry, made "embarrassing comments" about Jackson's looks, called her ugly, made statements about her body parts, and made a vulgar sexual comment. This occurred on the day before the school district's winter break began. Jackson reported the incident to Miller the next day. After winter break, Miller placed Swygert on administrative leave pending further investigation into Jackson's allegations. Jackson met with Miller and filed a written sexual harassment complaint against Swygert. Jackson also expressed concerns for her safety, and Miller placed Jackson on paid administrative leave.

During Miller's investigation, she obtained written statements from four employees, including Johnson, who witnessed the December exchange between Jackson and Swygert. Johnson's statement indicated that Jackson had become upsetand called Swygert a "[b]astard" and "ignorant." Miller determined that both Swygert and Jackson had engaged in inappropriate conduct in violation of policies established by USD 500's Board of Education ("District Policies"), and she recommended the Board terminate their employment.

Miller then informed Jackson of her alleged violations of District Policies. Jackson denied the violations and told Miller she thought the investigation was a "witch hunt." At the close of her investigation, Miller sent Jackson a letter stating her conclusion that Jackson violated District Policies prohibiting: (1) the use of profanity or abusive language; (2) conduct that is "detrimental to [USD 500] personnel" and that could cause undue disruption of work or endanger the safety of others; and (3) conduct that constitutes workplace violence. Miller explained that employees who violate District Policies are "subject to disciplinary action, . . . including termination." She further advised Jackson that pursuant to District Policies, she would be given "an opportunity to present [her] side of the story" at a hearing, consistent with Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). Jackson initially agreed to attend a Loudermill hearing, but later refused to do so. The Board ultimately approved Miller's recommendation to terminate both Swygert and Jackson.

Jackson filed suit, alleging that USD 500 violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2, by creating a sexually hostile work environment and terminating her in retaliation for reporting Johnson's sexual harassment. She also alleged USD 500 terminated her based on her age—she was 64years old—in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1). The court granted summary judgment in favor of USD 500 on all claims. Jackson timely appealed.

II

Because Jackson is proceeding pro se, we construe her pleadings liberally, see Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003), but do not "take on the responsibility of serving as [her] attorney in constructing arguments and searching the record," Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Jackson contends the district court should have stricken Johnson's written witness statement describing the December 2016 incident, which was attached to the affidavit of Susan Westfahl, USD 500's custodian of records. "[I]t is well settled in this circuit that we can consider only admissible evidence in reviewing an order granting summary judgment." Law Co. v. Mohawk Constr. & Supply Co., 577 F.3d 1164, 1170 (10th Cir. 2009) (quotation omitted). We review a district court's evidentiary rulings at the summary judgment stage for abuse of discretion. Sports Racing Servs., Inc. v. Sports Car Club of Am., Inc., 131 F.3d 874, 894 (10th Cir. 1997). We will not disturb the district court's ruling unless we have a "definite and firm conviction" that the court "made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1016 (10th Cir. 2002) (quotation omitted).

At the district court, Jackson moved to strike Johnson's statement, arguing that USD 500 did not timely produce or properly authenticate it. The court concludedUSD 500 had met its duty to disclose under Fed. R. Civ. P. 26(a) because its initial disclosures sufficiently identified the statement. With respect to authentication, the court concluded that although Westfahl's affidavit failed to establish that Johnson's statement was self-authenticating under Fed. R. Evid. 902, an affidavit by Miller was sufficient to authenticate the statement under Fed. R. Evid. 901(a). As a result, the district court denied Jackson's motion to strike.

We conclude that the district court did not abuse its discretion in admitting Johnson's statement. Although USD 500's initial disclosures, parts of which Jackson filed on the record in connection with her motion to strike, did not specifically list the statement, they do list "Witness statements relating to December 20, 2016 incident." We also conclude Johnson's statement was properly authenticated. Although "[w]e do not require an affidavit to authenticate every document submitted for consideration at summary judgment," Law Co., 577 F.3d at 1170, there was an affidavit from Miller authenticating Johnson's statement. To authenticate Johnson's statement, USD 500 was required to produce evidence that the statement was what USD 500 claimed it was. See Fed. R. Evid. 901(a). "[T]he bar for authentication of evidence is not particularly high." United States v. Isabella, 918 F.3d 816, 843 (10th Cir. 2019) (quotation omitted). In assessing authenticity, we ask "whether there is a reasonable probability that the evidence has not been altered in any material aspect." Id. (quotation omitted). Miller's affidavit stated that as part of her investigation of the December 2016 incident, she obtained a statement from Johnson. And Miller certified based on her personal knowledge that a true and correct copy of Johnson'sstatement was attached to Westfahl's affidavit. We hold the district court did not abuse its discretion in determining that Johnson's statement was admissible.¹

Jackson also contends the district court abused its discretion when it refused to consider a statement by Shannon Rinehart because the statement did not "appear in a conforming affidavit or declaration." Jackson v. Kan. City Kan. Pub. Sch. Unified Sch. Dist. No. 500, 378 F. Supp. 3d 1016, 1029 n.8 (D. Kan. 2019). We agree. The district court did not address whether the statement was authenticated by any other means. See Law Co., 577 F.3d at 1170-71 (holding a district court may not "summarily disregard[]" or "categorically discard[]" unauthenticated exhibits, but rather must consider their "appearance, contents, substance, internal patterns, or other distinctive characteristics"). The district court should have considered whether Rinehart's statement was otherwise authenticated. But any error is harmless. The district court considered Jackson's affidavit, which included the same content as Rinehart's excluded statement.²

III

Turning to Jackson's challenge to the district court's summary judgment ruling, we review the district court's grant of summary judgment de novo. SeeYoung v. Dillon Cos., 468 F.3d 1243, 1249 (10th Cir. 2006). Summary judgment is appropriate if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). We view all of the facts in the light most favorable to the non-moving party and draw all reasonable inferences in her favor. DeWitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1306 (10th Cir. 2017).

A

We first address Jackson's hostile work environment claim. "To establish that a sexually hostile work environment existed, a plaintiff must prove the following elements: (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on sex; and (4) due to the harassment's severity or pervasiveness, the harassment altered a term, condition, or privilege of the plaintiff's employment and created an abusive working environment." Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007) (alteration and quotation omitted). If a sexually hostile work environment claim is based on the employer's alleged negligence or recklessness in addressing a non-supervisory co-worker's harassment, the plaintiff must also prove that the employer "had actual or constructive knowledge of the hostile work environment but did not adequately respond to notice of the...