Tenth Circuit misapplies
"because of sex" requirement in sexual harassment case.
Riske v. King Soopers,
366 F.3d 1085 (10th Cir. April 22, 2004) - This is a Title VII sexual harassment
case. Ann Marie Riske worked for King Snoopers as a bakery manager. In 1997,
she began receiving anonymous cards, flowers and gifts from someone
identifying himself as "Neena" or "Nina." On January 19, 2000, Riske's
supervisor, Steven Katzenberger, admitted that he and another male employee
had been sending the notes, flowers and gifts. In the meantime, beginning in
the summer of 1999, Riske believed that Katzenberger was stalking her and he
also would whistle in a taunting manner. She confronted him more than ten
times about his offensive behavior. Riske sued King Soopers for sexual harassment. A jury found in favor
of Riske. The district court denied King Soopers' post-verdict motion for
judgment as a matter of law. On appeal, the Tenth Circuit reverses and
orders the district court to enter judgment in favor of King Soopers because
Riske failed to present sufficient evidence that the conduct was because of
sex. But Riske's evidence included: (1) receiving flowers on Valentine's
Day; (2) a card that said: "I am moving to love-land, come and see me in
love-land. I am going to miss . . . you in your tight-ass jeans."; (3)
another card said in part: "I hope you are loved in your life as much
as I have loved you in the past three years."; and (4) evidence that
Katzenberger was following her around and whistling at her in a taunting
manner. In reaching this strange conclusion, the Tenth Circuit relies on the
case of Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257
(10th Cir. September 15, 1998), but the Court misreads its own opinion. In Penry there
were two female plaintiffs and their sexual harassment claims failed because:
(1) the conduct that was gender-related was not sufficiently severe or
pervasive; and (2) the other conduct that they were subjected to was not
because of their gender, and therefore was not actionable. I will be
surprised if the Tenth Circuit does not withdraw this opinion and issue a
revised one.
