1. Why does the court find that Mahan’s conduct did not rise to the level necessary to create a hos-tile work environment? Do you agree?

2. What type of conduct is required for harassment to be considered severe or pervasive? Give an example of hypothetical conduct by Mahan that may have led the court to believe that Morris had met her burden of proof. 

3. Could Morris pursue other legal avenues against Mahan for his conduct? Is there any civil liability in tort? Could Morris pursue a breach of contract claim against the hospital for reassigning her from the Heart Team?

Morris was a registered nurse at Memorial Health System (“Memorial”) and was assigned to the Heart Team that per-formed all heart surgeries done at the hospital. Dr. Bryan Mahan (Mahan) is a surgeon on Memo-rial’s Heart Team. During the time Morris was on the Heart Team with Mahan, she contends that he harassed her on multiple occasions. Specifically, she alleges that he made a number of demeaning comments to her and treated her differently than male employees. 

In one incident, after Mahan surgically removed heart tissue from the patient on the operating table, he threw it in Morris’s direction. Although Mahan claimed that he intended only to throw the tissue on the floor behind him, the tissue hit Morris’s leg and Mahan joked about it afterwards. Morris reported the incident to (1) her supervisor, (2) Memorial’s director of surgery, and (3) Memorial’s director of human resources. In response, Memorial’s Chief of Staff temporarily suspended Mahan from the operating room and required members of the Heart Team to attend a team-building exercise. Both Morris and Mahan attended the training and worked together for three months afterwards.

Still, Morris filed a Notice of [Discrimination] Claim alleging that she had suffered damages as a result of the heart tissue incident and stated she would pursue claims against Memorial and Mahan. Memorial’s Human Resources office sent Morris an acknowledgement of the Claim and notified her that she would be removed from the Heart Team and assigned to the main operating room because of Memorial’s obligation to place her in a work environment that was comfortable. In 2009, Morris filed suit against Memorial in federal district court alleging discrimination. Among other claims, Morris asserted a claim under Title VII alleging that Mahan engaged in unlawful gender-based harassment and created an abusive and hostile working environment. The trial court dismissed the case on summary judgment ruling that Morris could not establish that the alleged harassment was based on her gender or that it was sufficiently “severe” or “pervasive” to affect her working environment. Morris appealed.

The Court of Appeals for the Tenth Circuit ruled in favor of Memorial and affirmed the trial court’s dismissal of the case. The court held that Mahan’s conduct did not rise to the level of a hostile work environment. The court explained that the comments made by Mahan to Morris and the tissue throwing incident were not sufficient to meet the “severe or pervasive” standard. The court pointed to past cases that were based upon sexual discrimination where there was evidence that the plaintiffs had been subjected both to a number of gender-based incidents occur-ring over a long period of time, including sexual propositions, and multiple incidents of hostile and physically threatening conduct. Since Mahan’s conduct did not rise to that legal standard, the court concluded that summary judgment by the trial court level was appropriate.

“Title VII does not establish a general civility code  for the workplace. Accordingly, the run-of-the-mill boorish, juvenile, or annoying behavior that is not uncommon in American work-places is not the stuff of a Title VII  hostile work environment  claim  .  .  . Not all offensive conduct is actionable as harassment; trivial offenses do not suffice. An employer creates a hostile work environment  when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment . . . While Dr. Mahan’s conduct (construing the facts in the light most favorable to Ms. Morris) was unquestionably juvenile, unprofessional, and perhaps independently tortious . . . [V]iewed in context, we cannot conclude from this record that it objectively altered the terms and conditions of Ms.  Morris’s employment.”