Bragg v. Office of the District Attorney, Thirteenth Judicial District
ORDER granting in part and denying in part 55 Motion for Summary Judgment. IT IS ORDERED that Summary Judgment is DENIED with respect to Plaintiffs First, Second, and Third Claims; and IT IS FURTHERED ORDERED that Summary Judgment is GRANTED with respect to Plaintiffs Fourth, Fifth, and Sixth Claims, and those claims are DISMISSED WITH PREJUDICE. by Judge Christine M. Arguello on 7/16/09.(erv, )
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Christine M. Arguello Civil Action No. 07-cv-00324-CMA-MJW PAULA D. BRAGG, an Individual, Plaintiff, v. OFFICE OF THE DISTRICT ATTORNEY, THIRTEENTH JUDICIAL DISTRICT, Defendant. ORDER ON MOTION FOR SUMMARY JUDGMENT This matter is before the Court on Defendant's Motion for Summary Judgment. (Doc. # 55.) For the following reasons, the Motion is GRANTED IN PART AND DENIED IN PART. INTRODUCTION This is an employment discrimination and retaliation lawsuit. Plaintiff worked for Defendant from January 1, 1987, through April 7, 2006. When she resigned in 2006, she worked as Defendant's Director of Victim Services. Plaintiff alleges that Defendant, and more specifically, certain of Defendant's employees, including Stephen Jones, Robert Watson, and Linda Holloway, retaliated against her for protected activities, made her working conditions so hostile that she felt compelled to resign, discriminated against her on the basis of her gender, and breached an employment contract created by Defendant's policy manual. Defendant moves for summary judgment on each of
Plaintiff's claims on various grounds including: Eleventh Amendment immunity, failure to exhaust administrative remedies, untimeliness, failure to allege a sufficiently hostile work environment, and failure to allege an adverse employment action. FACTUAL BACKGROUND The Court derives the following facts from the record, including allegations admitted in the pleadings, the parties' summary judgment briefing, and the summary judgment exhibits.1 The facts are undisputed unless otherwise noted. I. THE PARTIES Defendant is the District Attorney's Office for the 13th Judicial District, which comprises seven Colorado counties.2 Plaintiff began working for Defendant on January 1, 1987. She started as administrator for the victim compensation and Victim's Assistance and Law Enforcement Programs. Sometime between 1993 and 1995 she became the Director of Victim Services. As Director she again administered the victim compensation and Victim's Assistance and Law Enforcement Programs, and also ensured compliance with victims' rights legislation, wrote grant proposals, counseled victims of criminal acts, advocated for crime victims in court, and supervised victim rights staff. During her tenure with Defendant, Plaintiff worked at two separate office locations in Ft. Morgan, Colorado prior to 2005, she worked at an office on Railroad
Plaintiff relies heavily on her own thirty-three-page affidavit to support her factual assertions. Although the Court might question the veracity and reliability of such an affidavit under most circumstances, Defendant does not deny or dispute many of Plaintiff's assertions. Those seven counties are: Kit Carson, Logan, Morgan, Phillips, Sedgwick, Washington, and Yuma.
Avenue, after 2005 she worked at 220 Prospect in a building that Defendant leased from SHARE, a non-profit group. By the time she left Defendant in 2006, Plaintiff was the highest-ranking, non-attorney, female employee in Defendant's organization. II. PLAINTIFF'S RELATIONSHIP WITH STEVE JONES Much of Plaintiff's allegations concern Mr. Jones, an attorney employed by Defendant. Mr. Jones began working for Defendant as a deputy district attorney in June 2002. When Mr. Watson was elected District Attorney in January 2005, he promoted Mr. Jones to Assistant District Attorney, the second-highest ranking attorney in Defendant's organization.3 Although Mr. Watson directly supervised Plaintiff, Mr. Jones also had some degree of supervisory authority over Plaintiff, but the parties dispute the exact amount of authority. Neither Mr. Jones nor Mr. Watson worked in the same physical location as Plaintiff; Mr. Watson worked in Sterling, Colorado, and Mr. Jones worked in a different office in Ft. Morgan. However, Plaintiff often met with attorneys, including Mr. Jones, and other employees of Defendant at their offices or at her own office. A. December 2003 and January 2004 Events
Mr. Jones' relationship with Plaintiff proved interesting (and controversial) from the start. Sometime after Mr. Jones began working for Defendant in 2002, he and Plaintiff began to discuss Mr. Jones' personal life, especially the details of his wife's
Prior to 2005, Mr. Watson's predecessor, Mark Adams, had named Mr. Jones as the Chief Deputy District Attorney; there was no Assistant District Attorney under Mr. Adams.
illness and his family life. The two had at least one lengthy meeting of around an hour, but also talked on other occasions in his or another office by the Ft. Morgan courtrooms, and in phone conversations that lasted between thirty and sixty minutes. Plaintiff alleges that the conversations made her uncomfortable, but that she did not initially mention her discomfort to Mr. Jones. She did, however, attempt to terminate the discussions by telling Mr. Jones that she had "a meeting," or "work to do." In December 2003, the tenor of the conversations changed and Mr. Jones began to express a personal or sexual interest in Plaintiff. Plaintiff contends that did she not return Mr. Jones' amorous interest, but Mr. Jones contends that it was actually Plaintiff who pursued an intimate relationship. Regardless of who was pursuing whom, Plaintiff and Mr. Jones continued to engage in conversations (face-to-face and telephone) after business hours in December 2003 and January 2004. Mr. Jones mostly discussed himself and his personal life, including his wife's death, and his kids. Plaintiff did not talk much during the conversations, but she tried to help Mr. Jones through his family issues with advice based on her own experience with a sick husband. At some point, she mentioned to him that the conversations made her uncomfortable, although when she first mentioned this fact to Mr. Jones, Mr. Adams, or other co-workers is unclear.4
Plaintiff informed her husband of Mr. Jones' behavior and Plaintiff's husband contacted Mr. Adams at some point in January 2004.
Plaintiff contends that she "would ask him to stop" and "was feeling uncomfortable with the discussion," but Mr. Jones would not "take no for an answer." A pivotal event in relationship came after the office Christmas party in December 2003. Plaintiff and Mr. Jones went to a bar because Plaintiff wanted to discuss Mr. Jones' interactions with her. She also wanted to discuss rumors she had heard floating around the office to the effect that Mr. Jones had been talking about a romantic relationship between Plaintiff and himself. According to Plaintiff, she and Mr. Jones did nothing but discuss the propriety of their relationship at the bar, and she continued to reject his romantic advances. Conversely, Mr. Jones later told employees of a more physical encounter that evening. In any event, Mr. Jones' romantic pursuit continued, despite Plaintiff's January 2004 request that he stop flirting with her and making sexual comments about her. For example, in January 2004, Mr. Jones called Plaintiff and then mysteriously appeared at the shopping center where Plaintiff was grocery shopping. When Plaintiff asked Mr. Jones how he knew what she was doing and where she was, Mr. Jones responded, "I know a lot of things." Also in January 2004, Mr. Jones asked Plaintiff to accompany him on a personal trip to visit Mr. Jones' relatives. Plaintiff demurred and Mr. Jones stated that he would pay Plaintiff to accompany him.
Mid-2004 and 2005 Events
Although the parties dispute the reasons,5 both sides agree that after January 2004, conversation between Mr. Jones and Plaintiff decreased. Matters between them seemed to improve; however, any improvement was short-lived. At some point in late 2004 or early 2005, Mr. Jones bragged to another lawyer, Patrick Costigan, that he had sex with Plaintiff sometime in 2003, and that the pair had gotten physically intimate after the 2003 Christmas party in a vehicle provided to Plaintiff by Defendant. Mr. Jones then retracted his statements regarding a sexual relationship with Plaintiff, but the details of that evening remain unsettled.6 The problems with their personal relationship strained working relations between Mr. Jones and Plaintiff, as well. Plaintiff alleges that subsequent to January 2004, Mr. Jones quit working with Plaintiff and her department in the same positive manner that he had previously employed. Beginning in 2005, Plaintiff contends that Mr. Jones stopped communicating with her department. She states that "He mainly just didn't want to work with advocates. He thought they were a nuisance in his way." In contrast, Mr. Jones had been "fairly cooperative" with victim advocates prior to the spoiled relationship between Mr. Jones and Plaintiff. Mr. Jones' uncooperative attitude towards the victim advocates spread to other employees in the office. For example, at an early
Plaintiff alleges that she cut off communications, but Defendant alleges that Mr. Jones ceased his romantic pursuit on his own. Casting further doubt on the nature of the relationship between Mr. Jones and Plaintiff, Mr. Adams, the former District Attorney testified that Mr. Jones told him in 2007 that Mr. Jones had sexual relations with Plaintiff, an admission that Defendant does not dispute.
2005 training seminar Plaintiff put on for Defendant's staff, Plaintiff noticed an "obvious" difference in treatment by the attorneys which she attributed to Mr. Jones' influence because he was sitting in the front row of the seminar. A dispute over one case in April 2005, exemplified the problems between Plaintiff and Mr. Jones, and led to a particularly heated conversation between them. The pair had a disagreement about how to handle a situation involving a domestic violence victim who was threatening to file a complaint against Defendant. Plaintiff contends that Mr. Jones, the supervising attorney on the case, was not returning the victim's phone calls, so Plaintiff stepped in to answer some of the victim's questions. After discussing the case with the victim,7 Plaintiff told the victim to call Mr. Jones. Shortly thereafter, Mr. Jones received a voicemail message from the victim that raised his ire. He angrily called Plaintiff and told her that she was wrong in talking with the victim and she had been "disloyal" and "devious" in speaking to the victim about case strategy. Mr. Jones then said that he did not want Plaintiff working on any of his cases. Plaintiff attributed Mr. Jones' response to the situation to her purported rejection of his physical advances in the previous year. She complained to Mr. Watson about the situation and the three attempted to work through the issue. Plaintiff told Mr. Jones that she could work with him if he
Plaintiff and Mr. Jones dispute the exact nature of what Plaintiff said to the victim. Plaintiff contends that the victim asked her about details in her case, to which Plaintiff responded that one possibility was dismissal. Mr. Jones contends that Plaintiff told the victim that Defendant was going to dismiss her case, and this was incorrect. According to Mr. Jones, he had discussed dismissal with the junior attorney on the case, but had decided to do more work on the matter before deciding whether to dismiss the case.
treated her professionally. Plaintiff and Mr. Jones worked together on a additional few cases, but relations remained strained. Plaintiff contends that the atmosphere around the office (in Ft. Morgan, where Mr. Jones worked) became "very, very tense," and that certain employees became unfriendly to Plaintiff, whereas they had previously been cordial. Again, she attributed the mistreatment to Mr. Jones, whom she believed felt scorned by her rejection. At around the same time, Mr. Watson discussed moving the victim services offices out of the SHARE building and into Defendant's office in Ft. Morgan. Plaintiff told Mr. Watson that she could not move to Defendant's office because she could not work in the same location as Mr. Jones. Mr. Watson recalled Plaintiff used the term "stalking" to describe Mr. Jones' behavior, but Plaintiff denies that she used that terminology. Regardless, she does not deny that she told Mr. Watson about her problems with Mr. Jones, and that they formed the primary reason for her opposition to a change in office location. Plaintiff also describes how Messrs. Jones and Watson constantly forced to her explain her job duties to them. She also contends that they required Plaintiff to complete unnecessary, make-work type projects just to harass Plaintiff. Plaintiff also heard from co-workers about conversations between Messrs. Jones and Watson at staff meetings questioning Plaintiff's whereabouts and wondering what Plaintiff was "trying to pull." As a result of the treatment by Messrs. Jones and Watson, Plaintiff found herself
withdrawing from her job and keeping things to herself that she would have shared prior to alleged harassment. Another incident between Mr. Jones and Plaintiff came in February 2006. Typically, Mr. Watson handled the finances, including disbursement of moneys relating to Plaintiff's job. However, at some point, Mr. Watson authorized Mr. Jones as a signatory on Defendant's checking account. Thus, Mr. Jones would occasionally approve check disbursement requests, including Plaintiff's check disbursement requests. Plaintiff alleges that Mr. Jones delayed in approving a check request in February 2006 solely because of their history and that the delay affected her job performance. III. OTHER DISCRIMINATORY OR HARASSING BEHAVIOR Plaintiff was not the only one to complain about Mr. Jones' demeanor. Mr. Watson admitted that numerous people, including female employees, had complained about Mr. Jones' "brusque, harsh, [and] abrasive" personality. Plaintiff has presented testimony from employees like Sandi Farris, who stated that Mr. Jones used vulgar language in the office, and made derogatory and profane comments about men and women. Mark Miner, a deputy district attorney who observed Mr. Jones, echoed Ms. Farris' comments regarding Mr. Jones' use of foul language to describe women. Defendant does not dispute that Mr. Jones regularly described women with language drawn from a George Carlin skit, but contends that he described both men and women
with a vulgar tongue, as if the equal treatment makes the sexually vulgar language less hostile. Another incident occurred at the office Christmas party in December 2005, when Mr. Watson showed a video depicting a husband catching his wife in the middle of an extramarital affair. Apparently, the video clip had no relation to the slide show that Mr. Watson was presenting, but was merely intended to be funny. Plaintiff alleges that the video appeared to be directed at her because of her history with Mr. Jones, although she admits that it was discriminatory towards women and men. IV. DEFENDANT'S INTERNAL INVESTIGATION On March 15, 2006, Plaintiff met with Mr. Watson and handed him a formal complaint letter regarding alleged harassment by Mr. Jones. In her complaint, she listed several events, including the April 2005 disagreement, Mr. Jones' delay in processing the check, and a conversation in front of other employees in which Mr. Jones insinuated that Plaintiff was misappropriating Defendant's funding during a February 2006 trip to Las Vegas. Plaintiff contends that upon learning of the complaint and Plaintiff's request to keep it confidential, Mr. Watson immediately became angry, "He turned red-faced and just got tight." Mr. Watson told Plaintiff that he had to investigate the matter and, thus, he could not keep Plaintiff's complaint strictly confidential. Upon hearing that the complaint would not be kept confidential, Plaintiff took the formal complaint letter back from Mr. Watson and the meeting ended without any formal resolution.
Mr. Watson responded to Plaintiff's complaint by notifying at least two other people, Mr. Jones and Ms. Holloway. He also requested that Ms. Holloway begin investigating Plaintiff's allegations. Shortly thereafter, Plaintiff requested another meeting with Mr. Watson, but the second meeting never took place because Mr. Watson did not have time. On March 21, 2006, Mr. Jones sent Mr. Watson a memorandum responding to Plaintiff's allegations titled, "Hostile work environment claim." Mr. Jones recapped his version of the events that had occurred between himself and Plaintiff. Not surprisingly, Mr. Jones' version of the story conflicts substantially with Plaintiff's version. For example, Mr. Jones stated that in December 2003, Plaintiff had "expressed an interest in beginning a dating relationship with [him]," but "nothing sexual ever took place between" Plaintiff and Mr. Jones. Mr. Jones stated that it was he who counseled Plaintiff, and he who broke off personal communications in January 2004, not the other way around. Mr. Jones claimed to have heard of Plaintiff's complaints only through Mr. Watson and he requested that Mr. Watson formally investigate Plaintiff's allegations.
Mr. Jones also explained what he considered to be systemic problems with the victim advocates department. Mr. Jones contended that his relationship with Plaintiff was not to blame for the disconnect between the victim advocates and the attorneys. In Mr. Jones' opinion, the problems stemmed from an improper relationship that Plaintiff
and other "victim people" had with SHARE, the non-profit that shared office space with Plaintiff's department. On Mr. Watson's request, Ms. Holloway, an investigator for Defendant, began looking into the relationship between Mr. Jones and Plaintiff, and any issues related to a potential hostile work environment. Interestingly, Mr. Watson stated that, "No one is complaining that any type of sexual harassment is occurring," although that appears to be exactly what Plaintiff complained of. Mr. Watson directed Ms. Holloway to interview Mr. Jones and Plaintiff about their relationship and any events tending to create a hostile work environment. She was also to interview staff and attorneys in the Ft. Morgan office to obtain a sense of whether a hostile environment existed there. Plaintiff contends that Mr. Watson and Ms. Holloway's investigation was flawed and one-sided from its genesis. For example, Mr. Watson did not tell Plaintiff about Mr. Jones' March 21, 2006 memorandum, and she did not respond to the allegations therein. Ms. Holloway also admits that she felt Plaintiff's claims lacked merit and hoped Plaintiff's complaint would go away on its own. She stated, "And [Plaintiff] was still kind of pointing the finger at [Mr. Jones]. It's his predatory nature. And I thought whatever. How can you make lengthy phone calls, multiple phone calls, talk to each other for hours in different cities and feel like, you know, you can't hang up?" Moreover, Ms. Holloway admitted that she was concerned her investigation would impact her future working relationship with Plaintiff. Ms. Holloway even told Plaintiff that Plaintiff had "a nice family and [she] just need[ed] to let go of all of this and move on."
Plaintiff also contends that Ms. Holloway mistreated her during the investigation. In early April 2006, Ms. Holloway interviewed Mr. Jones, Plaintiff, and Sally Torres, and obtained Mr. Jones' phone records to investigate Mr. Jones and Plaintiff's relationship.8 The interviews produced "conflicting stories" about Plaintiff and Mr. Jones, which led Ms. Holloway to interview Plaintiff a second time. Plaintiff contends that Ms. Holloway's investigation was flawed because Ms. Holloway ignored many of the issues raised by Plaintiff in the first interview and treated her with a threatening and confrontational demeanor during the second interview. For example, Plaintiff claims that Ms. Holloway asked Plaintiff if she knew what the word "slander" meant, implying that Plaintiff was making her case up and slandering Mr. Jones. Ms. Holloway admits that she was mildly confrontational in her second interview and that she did ask Plaintiff if Plaintiff knew the meaning of the word slander. Ms. Holloway contends that she had reason to suspect that Plaintiff had discussed the investigation with other people outside of Defendant's organization, including the press, the chief of the Ft. Morgan Police Department, and the Ft. Morgan County Sheriff.9 Ms. Holloway claims her confrontational behavior resulted from her concern about the veracity of Plaintiff's allegations and the reputations of the people involved,
Plaintiff contends that Ms. Holloway spoke with approximately twenty people, but this allegation is not supported by Ms. Holloway's testimony. Ms. Holloway did not actually speak with the Ft. Morgan police, sheriff or press, but rather had heard through Mr. Watson that Plaintiff had disclosed supposedly confidential information regarding the investigation.
including Plaintiff and her family, in the relatively close knit law enforcement community of the 13th Judicial District. Ms. Holloway's skepticism of Plaintiff's allegations carried through to her recommendations to Mr. Watson. She told him that Plaintiff's allegations were "unfounded," especially her account of the 2003 office Christmas party. Conversely, Ms. Holloway found Mr. Jones' version of the story credible and supported by his phone records. Her interview reports and recommendations later formed the backbone of the official "Agency Findings" issued by Defendant, and signed by Mr. Watson, on May 5, 2006. V. PLAINTIFF'S RESIGNATION On March 30, 2006, Plaintiff sent a resignation letter to Mr. Watson indicating that she would resign in two weeks. In the letter, she referenced her earlier formal complaint and indicated that she was resigning because of "intolerable" working conditions. Mr. Watson accepted Plaintiff's resignation on March 30, 2006, but he stated that he disagreed with her on the issue of whether her complaints were going unaddressed. He pointed out that Plaintiff had retracted her formal complaint letter, other employees had told different versions of the key events in her complaint, and he had already asked Ms. Holloway to investigate the matter. He concluded his e-mail to Plaintiff by asking that she cooperate with Ms. Holloway's investigation. Notwithstanding the fact that Plaintiff had given April 14, 2006, as her last day, she notified Mr. Watson in a one-line e-mail that her last day would, in fact, be April 7,
2006. She did not mention her motivations in the e-mail,10 but she later stated that she moved up her departure date because she disliked the tone of the internal investigation and also because Mr. Watson had accused her of disclosing the investigation to the press without checking to see whether she had, in fact, disclosed anything. VI. POST-RESIGNATION EVENTS Plaintiff's resignation did not stop the investigation or end the allegedly unlawful employment practices. A. The Agency Findings
Based on Ms. Holloway's recommendations, which essentially adopted Mr. Jones' version of the events, Mr. Watson issued Agency Findings on May 5, 2006. He found Plaintiff allegations of retaliation to lack substance, and labeled Mr. Jones' conduct as "nothing more than ribbing," which he himself had received from Mr. Jones. Notably, Mr. Watson found that Plaintiff had "intentionally and falsely portrayed the relationship between her and Mr. Jones and that she lied to Investigator WheelerHolloway . . . about the relevant events." He found that Plaintiff had made up allegations about Mr. Jones to avoid being moved into the same office location as Mr. Jones. Not surprisingly, Plaintiff disputes virtually every aspect of the Agency Findings and contends that Mr. Watson issued them in retaliation against Plaintiff for filing her complaint.
Prior to her resignation, the High Plains Sexual Assault Center ("Assault Center") had offered Plaintiff a job as executive director. Plaintiff and Defendant dispute whether the Assault Center had asked Plaintiff for an answer on the job offer by March 29, 2006. Regardless, Plaintiff had accepted the job with the Assault Center on April 4, 2006.
The findings indicate that, had she still been employed by Defendant, Mr. Watson would have terminated Plaintiff immediately for dishonesty. However, Mr. Watson concluded that, since Plaintiff had resigned, Defendant could not take corrective action against her for the false claims. Instead, he stated that, "Her status with this office will be reported to any prospective employers as `ineligible for rehire.'" Mr. Watson did not directly contact any of Plaintiff's prospective employers, but he provided a copy of the Agency Findings to Mr. Jones, Plaintiff, the county commissioners for each of the counties that comprise the 13th Judicial District, and a reporter from the Sterling Journal-Advocate. B. The June 7, 2006 Letter
The dispute between the parties did not end with the issuance of the Agency Findings. On June 7, 2006, acting on the belief that Plaintiff had contacted law enforcement authorities requesting the names and addresses of sexual assault victims in the 13th Judicial District to contact them for group therapy at the Assault Center, Mr. Watson sent a letter to all law enforcement agencies within the District reminding them that Colorado law prohibited the disclosure of sexual assault victims' names to non-criminal justice agencies. Mr. Watson also sent a copy of his letter to Plaintiff, whom he had referenced by name in the June 7, 2006 letter. Mr. Watson claims that the sole reason for sending the letter was to advise law enforcement agencies of the propriety of Plaintiff's purported request for victim identities. Conversely, Plaintiff denies requesting the victim information. She contends
that Mr. Watson had no basis to send the letter, which she felt accused her of engaging in criminal behavior. Plaintiff claims Mr. Watson sent the letter in retaliation for her complaints against Defendant and that it harmed her professional reputation among the law enforcement community. Indeed, the chief of the Ft. Morgan Police Department, Keith Kuretich, who received a copy of the letter felt that the letter was directing the Police Department not to work with the Assault Center based on the Center's association with Plaintiff. In his impression, the letter implied that Plaintiff had done something illegal. C. Termination From The Assault Center
The final event at issue in Plaintiff's claims occurred in August 2006. The Assault Center terminated Plaintiff on August 1, 2006, telling her that it was not in the Center's best interest to continue with Plaintiff's employment. Not surprisingly, the parties dispute the reason behind Plaintiff's termination. Plaintiff claims that Defendant interfered with her employment and that she was terminated as a result of Defendant's retaliatory and discriminatory actions. Indeed, board members of the Assault Center knew both Messrs. Watson and Jones and Ms. Torres, who was interviewed by Ms. Holloway, was on the Assault Center Board of Directors. Further, the Assault Center received a copy of Mr. Watson's June 7, 2006 letter, and Virgie Nelson, the Assault Center Board President, even responded to Mr. Watson by letter on June 15, 2006.
However, those board members did not talk directly to Messrs. Jones or Watson about Plaintiff in the summer of 2006. Moreover, the Assault Center's board of directors had some concerns regarding the lack of courtroom appearances by Plaintiff. According to Ms. Nelson, the resulting negative effect on the Center's ability to raise grant monies, and not any action by Defendant, led to Plaintiff's termination. Regardless, after she left the Assault Center, Plaintiff took a job as executive director of the Sexual Abuse Response Advocates ("Response Advocates"). Even at Response Advocates, Plaintiff claims to still feel the effect of Defendant's retaliation. She alleges that Defendant continues to tarnish her reputation among law enforcement and points out that employees of Defendant have not attended training sessions taught by her, to the detriment of her career. VII. PLAINTIFF'S EEOC CHARGES Plaintiff acted quickly to report her complaints against Defendant. First, she sent a letter to the Equal Employment Opportunity Commission ("EEOC") on April 3, 2006, detailing her complaints against Mr. Jones and Defendant. Then, she filed her first Charge of Discrimination and an Intake Questionnaire with the EEOC on April 28, 2006. She filed a first amended charge on May 9, 2006, and a second amended charge on July 10, 2006. Each of the charges contain substantially similar allegations of a hostile work environment leading to a constructive discharge. On August 1, 2006, Plaintiff sent the EEOC a letter requesting that the agency expedite her right to sue letter. She also included a Supplemental Submission of
Supporting Facts and Law ("Supplemental Submission") that greatly expanded on the factual allegations in her earlier charges, and, for the first time, included allegations of post-employment retaliation.11 The EEOC issued a right to sue letter on December 1, 2006. PROCEDURAL HISTORY Compared to the lengthy factual history, the procedural history of this case is relatively simple. Plaintiff filed her Complaint on February 15, 2007, and Defendant answered on April 2, 2007. Discovery included an occasional hiccup, but all of the discovery issues have been resolved and Defendant filed the instant Motion for Summary Judgment on May 30, 2008. After some haggling between the parties over the briefing schedule, Plaintiff responded to Defendant's Motion with a rather prolix, 114-page response brief on August 20, 2008. As if 114 pages were insufficient, on September 17, 2008, Plaintiff filed a supplemental response brief addressing only Defendant's Eleventh Amendment arguments. Defendant then filed a reply in support of its Motion on October 31, 2008. The Motion is now ripe for decision. STANDARD OF REVIEW Courts should grant summary judgment if the record indicates that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Deepwater Investments, Ltd. v. Jackson Hold
She also sent Defendant a demand letter in June 2006 that explained some of her
Ski Corp., 938 F.2d 1105, 1110-11 (10th Cir. 1991); Devery Implement Co. v. J.I. Case Co., 944 F.2d 724, 726 (10th Cir. 1991). The moving party bears the initial burden of demonstrating the lack of an issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden, the non-movant must respond with evidence sufficient to create a genuine issue of material fact for trial. Id. at 324; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). To overcome a motion for summary judgment, the non-moving party must present enough evidence to allow a reasonable jury to find in its favor. Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993). In analyzing the evidence on a motion for summary judgment, a court should view the factual record and draw reasonable inferences in favor of the non-moving party. Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th Cir. 1995). DISCUSSION The Court will address Plaintiff's claims in the order Plaintiff has presented them in her complaint, taking each of Defendant's arguments on a claim-by-claim basis. I. FIRST CLAIM UNLAWFUL RETALIATION Plaintiff's first claim is for unlawful retaliation under Title VII. She contends that Defendant retaliated against her after she complained about harassment and discrimination. Notably, she argues that the retaliation began before she resigned and extended after her resignation.
Defendant contends that Plaintiff's charges failed to properly notify the EEOC of her claims of post-employment retaliation. As noted above, Plaintiff filed three charges of discrimination with the EEOC, she filed the first on April 28, 2006; the second on May 9, 2006; and the third on July 10, 2006. However, none of the EEOC charges specifically alleged that Plaintiff had suffered post-employment retaliation. Thus, Defendant argues that it is entitled to summary judgment on the retaliation claim because Plaintiff has failed to exhaust her administrative remedies. 1. Applicable Law Exhaustion Of Administrative Remedies
Before a Title VII plaintiff may proceed in federal court, she must exhaust her administrative remedies. See Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003). The exhaustion requirement protects employers by giving them notice of the allegations against them and provides the EEOC a chance to conciliate a plaintiff's claims before a lawsuit is filed. See Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1195 (10th Cir. 2004). "The first step to exhaustion is the filing of a charge of discrimination with the EEOC." Jones v. U.P.S., Inc., 502 F.3d 1176, 1183 (10th Cir. 2007). The next step is to determine the scope of the allegations raised in the charge of discrimination because those allegations generally control the scope of the federal lawsuit. Id. at 1186 (citing MacKenzie v. City & County of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005)). The Tenth Circuit liberally construes charges filed with the EEOC to determine whether a plaintiff has satisfied her administrative exhaustion requirements. Jones, 502
F.3d at 1186; Foster, 365 F.3d at 1195. However, each occurrence of discriminatory conduct constitutes a separate "unlawful employment practice." Martinez, 347 F.3d at 1210. Thus, to properly exhaust her administrative remedies and avail herself of the full scope of her allegations, an employee should report each discrete discriminatory act to the EEOC. See, e.g., id.; see also Woodman v. Runyon, 132 F.3d 1330, 1341 (10th Cir. 1997). Failure to do so may result in dismissal or summary judgment against the employee on those claims. Martinez, 347 F.3d at 1211. 2. Plaintiff Exhausted Her Administrative Remedies
Defendant argues that Plaintiff failed to raise the issue of post-employment retaliation in her three EEOC charges. More specifically, Defendant contends that Plaintiff has failed to exhaust her administrative remedies with regard to: (1) the May 5, 2006 Agency Findings; (2) Mr. Watson's June 7, 2006 letter to the law enforcement agencies in the 13th Judicial District; and (3) Defendant's alleged interference with her employment at the Assault Center. Plaintiff concedes that her EEOC charges lacked any allegation of post-employment retaliation, but contends that she did inform the EEOC of her post-employment retaliation claim in her August 1, 2006 Supplemental Submission. Plaintiff argues that the Supplemental Submission provided notice of the post-employment retaliation to both the EEOC and Defendant, and, thus, served the purposes of administrative exhaustion. The Court agrees with Plaintiff, and concludes that her filing of the Supplemental Submission remedies any failure on her part to exhaust the post-employment retaliation
claims in an official charge of discrimination. A number of facts support the Court's decision. First, Plaintiff could not have described her allegations of post-employment retaliation in the first two charges of discrimination because she filed the first charge before any of the alleged post-employment retaliation had occurred, and the second charge before Mr. Watson sent his June 7, 2006 letter regarding the victims of sexual abuse crimes. Even the third charge was filed before Plaintiff had been terminated from the Assault Center. Thus, she had no reason to suspect that Defendant had interfered with her employment, as she now alleges. In contrast to her charges of discrimination, Plaintiff filed the Supplemental Submission after she learned of the three incidents that form the backbone of her post-employment retaliation claim. Second, the Supplemental Submission explicitly referenced Plaintiff's earlier charges, thereby allowing the EEOC and Defendant to trace the Supplemental Submission to Plaintiff's pending claim. Critically, Defendant does not dispute that it received notice of the Supplemental Submission before filing its Position Statement with the EEOC. Therefore, Defendant knew of Plaintiff's post-employment retaliation claims before it was required to respond to Plaintiff's allegations. The Court should also point out that the Supplemental Submission provided a more detailed description of Plaintiff's claims than her earlier charges of discrimination. Thus, if notice of an employee's claims is the primary goal behind requiring administrative exhaustion, Plaintiff's Supplemental Submission actually served this purpose far better than her three charges of discrimination.
Admittedly, Plaintiff cannot explain why she did not follow the usual channels by submitting a fourth charge of discrimination. However, the Court will not deny Plaintiff her day in court because of a slight deviation from the normal bureaucratic process. Since the Supplemental Submission served the key purposes of the administrative exhaustion requirement, the Court sides with function over form and deny summary judgment on this portion of her retaliation claim. B. Adverse Employment Action And Causation
Defendant also argues that it is entitled to summary judgment on Plaintiff's retaliation claim because Plaintiff lacks sufficient evidence to support two necessary prongs of her prima facie claim of retaliation: (1) an adverse employment action and (2) a causal connection between the adverse action and Plaintiff's protected activities. 1. Applicable Law Retaliation Framework
A plaintiff can prove retaliatory treatment by direct or circumstantial evidence. See Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008); Bullington v. United Airlines, Inc., 186 F.3d 1301, 1320-21 (10th Cir. 1999). When, as here, a plaintiff relies largely on circumstantial evidence of retaliation, the Supreme Court has directed courts to apply a three-step, burden shifting analysis to determine whether summary judgment is appropriate. See McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell-Douglas, the plaintiff has the initial burden to present a prima facie case of retaliation. See id.; Kendrick v. Penske Transp. Servs., Inc., 220 F.3d
1220, 1226 (10th Cir. 2000). If a plaintiff can make out a prima facie case, the burden shifts to the employer to show a legitimate business reason for its actions. McDonnellDouglas, 411 U.S. at 806; Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 529 (10th Cir. 1994). If the employer can offer such a reason, the case should be dismissed on summary judgment unless the plaintiff can show that the proffered reason was merely a pretext for retaliation or discrimination. Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002). A plaintiff may show pretextual motive by producing evidence which demonstrates that the employer's proffered reason for acting adversely is "unworthy of belief." Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1146 (10th Cir. 2008) (citing Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995)). This framework applies whether a plaintiff seeks relief under Title VII, 42 U.S.C. § 1983, or § 1981. Kendrick, 220 F.3d at 1226 and n.4 (citing Perry v. Woodward, 199 F.3d 1126, 1135 (10th Cir. 1999) and Drake v. City of Ft. Collins, 927 F.2d 1156, 1162 (10th Cir. 1991)). Regardless of the burden shifting analysis, courts should keep in mind that, at all times, the employee retains the burden of proving that her employer intentionally retaliated against him. Adamson, 514 F.3d at 1145. To state a prima facie case for unlawful retaliation, a plaintiff must show that: (1) she engaged in protected opposition to discrimination; (2) she was subjected to an adverse employment action; and (3) a causal connection exists between the protected activity and the adverse action. Kendrick, 220 F.3d at 1234; see also Vaughn v. Epworth Villa, 537 F.3d 1147, 1150 (10th Cir. 2008). Defendant does not dispute that
Plaintiff has addressed the first element, but disputes the second and third elements, adverse employment action and causation. Regarding the second prima facie prong, the Tenth Circuit liberally defines "adverse employment action." Wells, 325 F.3d at 1212-13. However, the Tenth Circuit's definition must be viewed in light of recent clarification of this prong by the Supreme Court in Burlington N. & Santa Fe Ry Co. v. White, 548 U.S. 53 (2006). Under Burlington Northern, an employee "must show that a reasonable employee would have found the employer's action materially adverse such that they might be dissuaded from making a charge of discrimination." See id. at 1213; cf. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) ("A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."). Courts determine whether an employment action is adverse on a case-bycase basis. Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998); Jeffries v. Kansas, 147 F.3d 1220, 1232 (10th Cir. 1998). And, as the Supreme Court's use of the word "reasonable" suggests, courts should apply an objective standard. Williams v. W.D. Sports, 497 F.3d 1079, 1088 (10th Cir. 2007). Regarding the third prima facie prong, causation, a plaintiff must come forward with evidence that justifies an inference of retaliatory motive, "such as protected conduct closely followed by adverse action." Proctor v. U.P.S., 502 F.3d 1200, 1208 (10th Cir. 2007). Lacking evidence of a "very close" temporal connection between the employee's
protected conduct and adverse action, a plaintiff must present additional evidence to establish causation. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (emphasis in original); see also Piercy v. Maketa, 480 F.3d 1192, 1198-99 (10th Cir. 2007). 2. a. Plaintiff Can Establish A Prima Facie Case Of Retaliation Adverse employment action
In its first argument on this point, Defendant contends that Plaintiff repeatedly complained to Mr. Watson about alleged discrimination and harassment, first in April 2005 and again in February and March 2006. Thus, Defendant argues that Plaintiff was not dissuaded from complaining about discrimination or harassment as a result of Mr. Jones' conduct, and under Somoza v. University of Denver, 513 F.3d 1206 (10th Cir. 2008), this fact reflects that a reasonable employee would not have found Mr. Jones' conduct to be adverse and material. However, the Court concludes that Defendant applies Somoza (and Burlington Northern) too broadly. In Somoza, the employees at issue lodged numerous informal and formal complaints with their superiors. 513 F.3d at 1214-15. These complaints led the Tenth Circuit Court of Appeals to note that an employee's repeated complaints "may shed light as to whether the actions are sufficiently material and adverse to be actionable." Id. at 1214. In contrast to Somoza, Plaintiff complained once to Mr. Watson about Mr. Jones in April 2005, and again approximately one year later in February and March 2006.
Perhaps if Plaintiff had lodged repeated complaints with Mr. Watson, the Court's decision would change, but, unlike Somoza, Plaintiff's complaints in this case do not necessarily reflect that a reasonable employee would be unfazed by Defendant's actions. As such, the Court concludes that Plaintiff may present her allegations of retaliatory conduct to a jury and let the jury decide whether a reasonable employee would have been dissuaded from filing a charge of discrimination by Mr. Jones and Mr. Watson's conduct. In its second argument on this point, Defendant contends that none of Defendant's alleged conduct, e.g., Mr. Jones' behavior towards Plaintiff around the office after the April 2005 disagreement, his comments about her trip to Las Vegas, the video at the 2005 Christmas party, Messrs. Watson and Jones' overbearing questions and requests regarding Plaintiff's job duties and functions, and the internal investigation of her complaints, rise to a sufficient level of materiality and adversity to meet the second prima facie prong. Plaintiff responds that Defendant's actions should not be singled out for analysis on a one-by-one basis, and the Court should view Defendant's conduct as having a cumulative effect. Plaintiff further contends that she has alleged far more offensive conduct than trivial outbursts or generic ridicule by co-workers, and that Defendant targeted her for individual harassment and discrimination. Viewing the facts in the record in a light favorable to Plaintiff, the Court concludes that Plaintiff has presented sufficient evidence to make out a prima facie case.
Regarding Mr. Watson and Mr. Jones' alleged retaliatory conduct, Plaintiff has alleged that both men continually asked her to justify her job functions in a manner that was missing from Mr. Watson or Mr. Jones' supervision of other employees. Plaintiff also alleges Mr. Jones ridiculed her job role, gender and personal life to numerous employees around the office. In contrast to Defendant's arguments, these targeted actions reflect more than general impolite behavior and would allow a reasonable juror to find in Plaintiff's favor. Additionally, the evidence in the record indicates that Defendant began the internal investigation of Plaintiff's allegations with two strikes against Plaintiff's credibility. To wit, Mr. Watson's communications with Plaintiff regarding the investigation imply that Mr. Watson put far more stock into Mr. Jones' version of the story than he put into Plaintiff's version of the story. The tenor of Ms. Holloway's investigation and interviews suggest that she, too, started from the position that Plaintiff was lying and Mr. Jones was telling the truth. For example, Ms. Holloway admitted that she told Plaintiff to just "move on" and forget about her complaint. Defendant's failure to impartially investigate Plaintiff's claims of harassment are sufficiently adverse to allow a jury to find that the actions would dissuade a reasonable employee from reporting further harassment or discrimination. Defendant's post-employment actions, e.g., the June 7, 2006 letter to law enforcement agencies and disclosure of the Agency Findings to a local paper, also support Plaintiff's retaliation claim. Although the legal advice in the June 7 letter is not
necessarily offensive or adverse, Plaintiff has presented evidence reflecting that members of the law enforcement community, like Mr. Kuretich, found the letter unwarranted and believed that it cast a negative light on Plaintiff's reputation. Thus, even if Plaintiff had improperly requested the names of sexual abuse victims, the manner in which Mr. Watson went about notifying the various law enforcement agencies supports Plaintiff's retaliation claim. Indeed, Mr. Watson could just as easily have drafted the letter without any reference to Plaintiff, but he chose to mention Plaintiff by name in the letter. This fact, when viewed in a light favorable to Plaintiff, might lead a jury to conclude that Mr. Watson sought to use the letter as a backhanded way to retaliate against Plaintiff among the close-knit law enforcement community in the 13th District. Defendant also ignores Plaintiff's allegation that Mr. Watson disclosed the May 5, 2006 Agency Findings to the Sterling Journal-Advocate, a newspaper in the 13th Judicial District. Given the highly pejorative comments regarding Plaintiff and the sensitive nature of the topics discussed in the Agency Findings, disclosure of those unredacted Findings to a local paper could allow a jury to find that a Defendant had retaliated against Plaintiff in a manner adverse and sever enough to dissuade a reasonable employee from raising complaints of discrimination. On the basis of the evidence cited above, the Court concludes that Plaintiff has presented enough instances of potentially unlawful and derogatory conduct by Defendant to satisfy the adverse employment action prong of her prima facie case.
Defendant next argues that, even if Plaintiff can establish an adverse employment action, only three acts might be severe enough to be considered materially adverse: (1) the Agency Findings; (2) Defendant's interference with Plaintiff's employment at the Assault Center; and (3) Mr. Watson's refusal to send his staff to Plaintiff's training seminar. Defendant goes on to argue that Plaintiff cannot establish a causal link between her protected actions and any of these three instances of retaliatory conduct. Initially, Defendant contends that the time gaps between the protected activity and the allegedly retaliatory conduct is too long to imply a causal link. However, the Court disagrees, and finds that Plaintiff has presented evidence to establish a sufficient causal connection between her protected activities and Defendant's alleged retaliation. Even if the Court adopts Defendant's argument, ignores any instances of pretermination adverse employment actions, and assumes that the Agency Findings constitute the first retaliatory adverse employment action, the Findings came out less than two months after Plaintiff lodged her formal complaint with Mr. Watson and only one month after Plaintiff sent Mr. Watson her resignation e-mail, in which she reiterated her complaints. This is a sufficiently small temporal gap between protected activity and retaliatory action to survive summary judgment. See Piercy, 480 F.3d at 1199 (declining to grant summary judgment on causation element when retaliatory conduct followed plaintiff's protected activity by less than one month).
Moreover, although Defendant only addresses the temporal link between three of the alleged post-employment adverse actions, Plaintiff has alleged other instances of retaliatory conduct that followed closely on the heels of other protected activity. By way of example, Mr. Jones refused to work on cases with Plaintiff, and Messrs. Jones and Watson assigned Plaintiff unnecessary projects immediately after Plaintiff's April 2005 complaint about Mr. Jones. A second example of pre-termination retaliatory conduct would be Mr. Watson and Ms. Holloway's allegedly one-sided investigation less than two weeks after Plaintiff's complaint to Mr. Watson in March 2006. The tight temporal gaps between the various instances of protected conduct and the potentially retaliatory conduct preclude summary judgment on the causation prong of Plaintiff's prima facie case. 3. Pretextual Motive
Defendant also attacks the third step of the McDonnell Douglas framework. It argues that it had a legitimate non-discriminatory reason to initiate the 2006 investigation into Plaintiff's allegations, conduct the investigation with Ms. Holloway, and draft the Agency Findings, and that Plaintiff has not come forward with evidence to establish that the Defendant's reasons for taking these actions was merely pretextual or unworthy of belief. However, the Court disagrees and concludes that Defendant has not presented a sufficient non-discriminatory reason to explain each of its retaliatory actions. For example, although Defendant had legitimate reasons to initiate the investigation, i.e.,
Plaintiff and Mr. Jones' complaints, Defendant has not come forward with any evidence to explain the seemingly biased nature of the inquiry. Defendant contends that Plaintiff may disagree with Ms. Holloway's style may have made Plaintiff uncomfortable, but that is not enough to imply retaliation. However, even Ms. Holloway admitted that she had a personal interest in the outcome of her investigation and that she was confrontational with Plaintiff during her interviews. Ms. Holloway's deposition testimony reflects that she thought Plaintiff should simply move on, rather than pursue her complaint. Likewise, the tone of Mr. Watson's communications with Plaintiff reflect that he had already made up his mind regarding Plaintiff's claims before the investigation had begun. Thus, contrary to Defendant's argument, a jury could find that the biased tone of the investigation into Plaintiff's complaint indicates that Mr. Watson and Ms. Holloway did not act in good faith, but out of retaliation for Plaintiff's allegations against Defendant. In short, a jury could find that the investigation was a pretextual cover to vindicate the nearly wholesale adoption of Mr. Jones' version of the events in the Agency Findings. Further, the manner in which Defendant disclosed the Agency Findings to the public in unredacted form precludes summary judgment. Defendant provided a copy of the Agency Findings to the county commissioners and the Sterling Journal-Advocate, but has not explained why such a sensitive report containing what appears to be
confidential personnel information of a former employee was disclosed to the press.12 The only excuse that Defendant offers on this point is that the Office Policy Manual does not guaranty confidentiality of items like the Agency Findings. The Office Policy Manual may not prohibit disclosure, but this is not sufficient reason to disclose sensitive and confidential personnel information to the public. Notwithstanding the fact that Defendant had a non-retaliatory reason to initiate the investigation, Defendant has not provided a legitimate non-retaliatory reason to justify the one-sided nature of the inquiry and Defendant's disclosure of the Agency Findings to the local newspaper. Therefore, for the reasons noted above, the Court finds that Defendant has not met its burden on the second stage of the McDonnell Douglas framework to present a legitimate non-discriminatory reason for each of the potentially retaliatory actions.13 II. SECOND CLAIM SEXUAL HARASSMENT Plaintiff's second claim is labeled, "Sexual Harassment," and appears to allege that Plaintiff suffered harassment in the form of a hostile work environment. Defendant
Indeed, the Court questions whether Defendant, in disclosing the Agency Findings to the public has violated any confidentiality provisions of the Colorado Open Records Act or other laws protecting confidential personnel information. Because, for purposes of this Order, the Court concludes that Plaintiff has presented enough evidence relating to causation on the basis of the Agency Findings, it need not address Defendant's other arguments regarding the alleged interference with Plaintiff's employment at the Assault Center or Mr. Watson's decision not to send his employees to Plaintiff's training seminar.
moves for summary judgment on this claim on the basis of untimeliness and the substantive elements of the claim. A. Mr. Jones' December 2003 and January 2004 Conduct
Defendant contends that Plaintiff's allegations regarding Mr. Jones' conduct in December 2003 and January 2004 are time-barred because the conduct falls outside of the applicable 180- or 300-day window for Title VII claims. 1. Applicable Law Title VII Statutes Of Limitations
Typically, a plaintiff must file a charge of discrimination with the EEOC within either 180 or 300 days of the occurrence of "unlawful employment practice." See 42 U.S.C. § 2000e-5(e)(1). If a plaintiff does not file her grievance with a state employment entity that has the authority to grant relief or seek criminal remedies relating to an unlawful employment practice, the 180-day rule applies. Id. If she does file her grievance with such an entity, the 300-day rule applies. Id. Discrete unlawful employment practices, such as a termination, failure to promote, or refusal to hire occur once, on the day that the termination, failure to promote, etc., occurs. See Tademy v. Union Pac. Corp., 520 F.3d 1149, 1156 (10th Cir. 2008) (citing National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002)). A plaintiff cannot recover for discrete retaliatory or discriminatory acts that occur outside of the 180- or 300-day deadline. See Morgan, 536 U.S. at 113 ("discrete discriminatory acts are not actionable if time barred").
However, a hostile work environment claim, by its nature, involves a series or pattern of discrete acts occurring over a period of time that may last days or years and may even outlast the statutory time periods in 42 U.S.C. § 2000e-5(e)(1). Morgan, 536 U.S. at 117 ("A hostile work environment claim is composed of a series of separate acts that collectively constitute on `unlawful employment practice.'"); Duncan v. Manager, Dep't of Safety, City & County of Denver, 397 F.3d 1300, 1309 (2005). As the Supreme Court has pointed out, the nature of hostile work environment claims means that they do not fit neatly within the "unlawful employment practice" time-period framework because the hostile environment is not a discrete act. Morgan, 536 U.S. at 115 (noting that hostile work environment claims are "different in kind from discrete acts"). Thus, the Supreme Court has held that: It does not matter, for purposes of the statute, that some component acts of the hostile work environment fall outside of the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire period of the hostile environment may be consider by a court for purposes of determining liability. Id. at 117. In order to take advantage of Morgan and bootstrap untimely discrete events to otherwise timely discrete acts in hostile work environment claim, a plaintiff must show a sufficient relationship between the untimely events and the timely events. See Duncan, 397 F.3d at 1309 (citing Morgan, 536 U.S. at 120). In other words, the plaintiff must show that the untimely acts were a component of the same hostile work environment created by the timely acts. See Tademy, 520 F.3d at 1156 (citing Duncan, 397 F.3d
at 1309). To determine whether a sufficient relationship exists, courts should look to three factors: (1) did the timely and untimely events involve the same type of acts; (2) how frequently did the acts occur; and (3) were the acts perpetrated by the same people? See Morgan, 536 U.S. at 120; Duncan, 397 F.3d at 1309. 2. A Genuine Issue Of Fact Exists Regarding Whether Mr. Jones' December 2003 And January 2004 Actions Contributed To A Hostile Work Environment
Defendant contends that Plaintiff filed a charge with the EEOC on April 28, 2006 and calculates that Plaintiff cannot recover for unlawful employment practices occurring 180 days before Plaintiff filed her charge, or any events prior to October 30, 2005.14 Thus, Defendant argues that Plaintiff cannot use Mr. Jones' alleged harassment of Plaintiff in December 2003 and January 2004 to support her Title VII claims because the harassment falls outside of the time period and is not sufficiently related to the events that compose Plaintiff's hostile work environment claim. a. The types of acts
Regarding the first Morgan factor, Defendant contends that the acts allegedly perpetrated by Mr. Jones in December 2003 and January 2004 differ dramatically from the acts that occurred after October 30, 2005. Defendant argues that Mr. Jones' early harassment involved unwanted pursuit of a romantic or physical relationship with Plaintiff; whereas the later, timely conduct involved cold, unprofessional behavior that
Plaintiff contends that the actual date of the first EEOC charge is May 8, 2008 and that the 300-day rule should apply. However, the Court need not resolve these disputes because it is immaterial to Defendant's arguments under either the 180- or 300-day rule, Mr. Jones' December 2003 and January 2004 conduct is technically untimely.
went more towards Plaintiff's professional life and work reputation. Under Defendant's view, the untimely hostile work environment consisted of too much of Mr. Jones' attention, and the timely hostile work environment consisted of not enough of his attention. However, as Plaintiff points out, her hostile work environment claim does not turn solely on Mr. Jones' unwanted romantic advances, but also on his alleged discussions and statements of a sexual nature regarding Plaintiff with other employees in the office. For example, Marilyn Malone, one of Plaintiff's co-workers, stated that she first became aware of Mr. Jones "saying things about" Plaintiff to other employees sometime prior to December 2003.15 Ms. Malone also told Plaintiff about comments she had heard from Mr. Jones regarding Plaintiff. It appears that Mr. Jones continued to discuss Plaintiff in a sexual manner with co-workers, namely Mr. Costigan, in late 2004 or very early 2005, and again in March or April 2006. Thus, although Mr. Jones may have halted his pursuit of a physical relationship with Plaintiff in January 2004, a reasonable jury could find that he contributed to the hostile work environment by continually discussing Plaintiff in a sexual manner with co-workers from 2003 through 2007.
Defendant objects to the use of Ms. Malone's statement on hearsay grounds. However, Plaintiff is not citing to Ms. Malone's testimony for the truth of the matter asserted, i.e., it does not matter whether or not Mr. Jones really did want to lay down on the couch with Plaintiff, but instead for its effect on the listener, Ms. Malone, and the state of mind of the speaker, Mr. Jones.
Frequency of the acts
Regarding the second Morgan factor, Defendant argues that Mr. Jones' December 2003 and January 2004 acts occurred in a distinct time period and a large interlude existed before Mr. Jones became rude, unprofessional, unwilling to work with Plaintiff or the other victim advocates. However, Plaintiff has presented evidence showing that Mr. Jones' harassing conduct, although it may have shifted slightly in terms of his treatment of Plaintiff, did not cease altogether in January 2004 and then recommence in 2005. For example, Mr. Adams stated that during his tenure as district attorney (i.e., prior to Mr. Watson's taking office in 2005), Mr. Jones made numerous sexist comments regarding female victim advocates and the Colorado Organization for Victim Advocates, a group to which Plaintiff belonged. Additionally, Mr. Costigan's testimony regarding Mr. Jones' statements reflects that Mr. Jones was discussing Plaintiff in a sexual manner with co-workers sometime in late 2004 or early 2005. Thus, evidence shows that Mr. Jones' harassing comments continued with relative frequency from roughly December 2003, up through at least October 30, 2005. A reasonable jury could conclude that his Mr. Jones "bad acts" occurred with enough frequency to allow a jury to find that the December 2003 and January 2004 acts contributed to the potentially hostile work environment that existed after October 30, 2005. c. Same managers or employees
Regarding the third Morgan factor, Defendant argues that the December 2003 and January 2004 harassment involved only Mr. Jones, whereas the hostile work
environment that existed after October 30, 2005 involved Mr. Jones, Mr. Watson, and other coworkers like Ms. Holloway. Defendant contends that the participation of new individuals should result in exclusion of Mr. Jones' earlier conduct. However, Mr. Jones took part in both the untimely and timely practices that make up Plaintiff's hostile work environment claim. Moreover, contrary to Defendant's argument, the addition of new harassing or discriminatory actors later in time does not somehow render earlier discrimination moot or non-actionable when it otherwise contributes to a hostile work environment. Indeed, as Tademy noted, if strict continuity between actors was required to state a hostile work environment claim, an employer could escape liability by employing a "legion" of sexists and then directing them to coordinate their harassment so as to game the statutory time period. The Court concludes that Mr. Jones' untimely conduct in December 2003 and January 2004, is sufficiently related to the conduct that occurred after October 30, 2005, because the untimely conduct was similar to the timely conduct, occurred with relative frequency and involved the same discriminatory actor throughout. Thus, the Court will deny summary judgment on this aspect of Plaintiff's claim and allow Plaintiff to present relevant evidence of Mr. Jones' December 2003 and January 2004. B. Defendant's Substantive Arguments Regarding Hostile Work Environment
Defendant also argues that it is entitled to summary judgment because Plaintiff cannot present sufficient evidence to raise a triable issue of fact on whether the alleged
discrimination was gender-based and whether the environment was pervasive or severe enough to alter the terms of Plaintiff's employment. 1. Applicable Law Hostile Work Environment
As noted elsewhere in this Order, not all workplace unpleasantries create an actionable claim under Title VII. See Sprague v. Thorn Amers., Inc., 129 F.3d 1355, 1365 (10th Cir. 1997) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57
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