Murphy v. Pagosa Lakes Property Owner's Association
ORDER by Judge Philip A. Brimmer on 4/20/15. ORDERED: that Ms. Murphy's Motion for Summary Judgment as to Liability [Docket No. 20] is DENIED. ORDERED: PLPOA's Motion for Summary Judgment [Docket No. 21] is GRANTED. ORDERED: This case is dismissed in its entirety.(kpreu)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-03445-PAB-NYW
PAGOSA LAKES PROPERTY OWNER’S ASSOCIATION, a Colorado not-for-profit
This matter is before the Court on the Motion for Summary Judgment as to
Liability [Docket No. 20] filed by plaintiff Martha Murphy and the Motion for Summary
Judgment [Docket No. 21] filed by defendant Pagosa Lakes Property Owner’s
Association (“PLPOA”). This Court has subject matter jurisdiction pursuant to 28 U.S.C.
PLPOA is a homeowners association located in Pagosa Springs, Colorado.
PLPOA is governed by a board of directors (the “board”). On June 25, 2010, plaintif f
began working for PLPOA in the Department of Community Standards as a community
liaison. Docket No. 29 at 4. In July 2011, Chip Munday was hired as general manager
of PLPOA. Docket No. 22-1 at 2, p. 7:18-23; Docket No. 20 at 1.
PLPOA’s Personnel Guidelines contain an “Anti-Discrimination / Anti1
The following facts are undisputed unless otherwise indicated.
Harassment Policy” (the “policy”). Docket No. 21-1 at 4-6. The policy defines and
provides examples of conduct that could constitute sexual harassment. Id. at 5. The
policy further states
If an employee witnesses any prohibited harassment or discrimination, or
believes he/she is being harassed or discriminated against, the individual
should make a formal complaint, in writing, to the General Manager, to the
Board of Directors, or to any member of the Board. Employees are strongly
encouraged to report harassment or discrimination promptly, before it
becomes severe or pervasive. The complaint should provide as much of the
following information as possible under the circumstances: the date, time,
and location of the incident; the name of the person alleged to have initiated
the harassment and the name of the person subjected to the harassment; a
factual description of the conduct; and the names of other persons
witnessing the conduct.
Allegations of harassment/discrimination will be investigated in as
confidential a manner as is practical under the circumstances; however,
absolute confidentiality cannot be guaranteed. An individual who is found to
have engaged in harassment/discrimination will be subject to appropriate
disciplinary action, up to and including termination. Retaliation against any
individual who has registered a harassment/discrimination complaint or who
has cooperated in connection with the investigation of such complaint will not
Docket No. 21-1 at 5-6. On December 20, 2011, Ms. Murphy acknowledged that she
received and understood the Personnel Guidelines. Docket No. 21-2. It does not
appear that, prior to 2013, PLPOA provided anti-discrimination training to its
employees. See Docket No. 20 at 7-8, ¶¶ 14-16; Docket No. 20-2 at 3, pp. 15:17-16:2;
Docket No. 22-9 at 2.
A. Incidents of Harassment
Ms. Murphy’s complaint alleges that Mr. Munday sexually harassed her on five
occasions between January 2012 and December 2013, allegations which PLPOA
denies.2 Ms. Murphy’s complaint alleges that, on or about January 23, 2012, Ms.
Murphy and PLPOA co-worker Tonya Hamilton met with Mr. Munday in his office, at
which point Mr. Munday stated to Ms. Murphy “Well you could just stay here and have a
drink with me” (the “January 23, 2012 incident”). Docket No. 1 at 3, ¶ 10. In her w ritten
statement, Ms. Hamilton alludes to hearing about this incident from Ms. Murphy, but
Ms. Hamilton does not indicate that she was present. Docket No. 22-11 at 2. However,
Ms. Murphy’s complaint is not verified and her summary judgment briefs do not
specifically identify any evidence in support of the complaint’s allegations regarding the
January 23, 2012 incident.
Ms. Murphy’s complaint alleges that, on February 14, 2012, Mr. Munday acted
inappropriately towards her (the “February 14, 2012 incident”). Docket No. 1 at 3, ¶ 11.
Ms. Murphy went into Mr. Munday’s office and asked Mr. Munday if she could have a
ribbon she saw on his desk to use for wrapping a present. Id. Ms. Murphy testified that
Mr. Munday “looked down at my crotch and said, ‘Well, what kind of present,’ and I said
‘Not that,’ and turned around and walked out and left the [ribbon] sitting there.” Docket
No. 24-1 at 5, p. 61:21-62:4; see also Docket No. 22-11 at 2.
Ms. Murphy’s complaint alleges that Mr. Munday made inappropriate comments
during a September 2012 birthday celebration for Ms. Hamilton held at the PLPOA
offices (the “September 2012 incident”). Docket No. 1 at 3, ¶ 14. In a written statement
to the PLPOA board, Ms. Hamilton stated that during a birthday celebration at the
PLPOA asserts that Ms. Murphy’s hostile work environment claim is based on
five incidents. Docket No. 21 at 4, ¶ 8. Ms. Murphy does not dispute PLPOA’s
assertion or identify additional incidents of harassment. Docket No. 23 at 4, ¶ 8.
We had a cheese cake with fruit on top. In order to keep the fruit fresh and
to keep it from browning, there is a clear gel that is applied over the top of it.
Chip made some “implications” as to what it was, what it could be, but never
really saying anything obvious. Everybody knew what he was implying and
many people nervously laughed because they didn’t know what else to do.
Docket No. 20-11 at 2; see also Docket No. 1 at 3, ¶ 14.
Ms. Murphy’s complaint alleges that, in November 2012, she was walking out of
a meeting when Mr. Munday said to her, “Those pants look good on you” (the
“November 2012 incident”). Docket No. 1 at 4, ¶ 16. Ms. Murphy does not cite any
evidence in the record supporting this allegation.
Ms. Murphy’s complaint alleges that, on December 21, 2012, Mr. Munday
behaved inappropriately towards her during the PLPOA Christmas party (the “Christmas
party incident”). Docket No. 1 at 4, ¶ 17. Ms. Murphy and PLPOA homeowner Shelly
Johnson attended the PLPOA Christmas party. Docket No. 22-11 at 1. Ms. Murphy
testified that Mr. Munday “walked up to me, and I said, ‘Merry Christmas,’ and he bent
down, and he kissed me on the lips. And I was just kind of shocked. I was shocked.”
Docket No. 20-1 at 3, p. 69:4-6. Ms. Johnson did not w itness Mr. Munday kissing Ms.
Murphy. Docket No. 22-12 at 1. Ms. Murphy and Ms. Johnson then sat down at a table
near Mr. Munday and his wife. Docket No. 20-1 at 3, pp. 70:20-71:5. PLPO A
employees Rick Starr and Russell “Jerry” Gallion later joined Ms. Murphy and Ms.
Johnson at their table. Id. at 3, p. 72:7-10. Mr. Munday came over to Ms. Murphy’s and
Ms. Johnson’s table and Ms. Murphy testified that Mr. Munday began rubbing on her
back and “then he started messing with my bra.” Id. at 3, p. 72:10-25; see also Docket
No. 22-11 at 1 (“I was wearing a red silk blouse. He kept touching it and at one point
started rubbing the back of it and snapped my bra.”). Ms. Murphy looked at Ms.
Johnson, and Ms. Johnson looked up at Mr. Munday and asked, “What the hell are you
doing?” Id. According to Ms. Murphy and Ms. Johnson, Mr. Munday stepped back, put
his hands in the air, said “I got a little carried away with the silk,” and eventually left the
table. Docket No. 22-11 at 1; Docket No. 22-12 at 1. Mr. Munday admits to hugging
Ms. Murphy at the Christmas party, but denies kissing her, rubbing her shoulders, or
tugging at her bra strap. Docket No. 22-2 at 2, p. 59:2-23.
On December 26, 2012, Ms. Murphy sent Mr. Munday an email that stated “I
wanted to thank you for a fun Christmas party and the warm welcome...:),” to which Mr.
Munday responded “My pleasure – anytime! (” Docket No. 24-4. Ms. Murphy testified
that she sent the email because “I wanted to have something in writing that I could go to
– okay. I wanted to have something in writing so I could go to him and say stop this or
I’m going to show this to somebody.” Docket No. 24-1 at 6, p. 96:8-17.
Ms. Murphy testified: “Q. . . . Did you ever tell Chip Munday to knock it off or to
stop? A. No.” Docket No. 24-1 at 5, p. 61:7-9. She later testif ied that, other than
telling Mr. Munday “Not that” during the February 14, 2012 incident, she could not recall
telling Mr. Munday to “knock it off or quit.” Id. at 5, pp. 61:21-62:13.
Ms. Murphy claims to have first reported Mr. Munday’s behavior to PLPOA
Human Resources Director Donald Arries in February 2012, but it is unclear precisely
what she told Mr. Arries at that time. Citing her own deposition testimony, Ms. Murphy
asserts that, on February 5, 2012, she told Mr. Arries that Mr. Munday was “sexually
harassing her.” Docket No. 20 at 4. However, Ms. Murphy failed to attach the cited
portion of her deposition to her briefs and, as a result, her assertion is unsupported.
PLPOA cites a different portion of Ms. Murphy’s deposition testimony, where Ms.
Murphy testified that, on February 21, 2012, she told Mr. Arries that Mr. Munday was
behaving inappropriately, but she did not recall whether she told Mr. Arries about any
specific incidents. Docket No. 22-3 at 5, pp. 46:25-48:22. Ms. Murphy recalled telling
Mr. Arries on that day that she did not wish to make a formal complaint. Id. Ms.
Murphy testified that she spoke with Mr. Arries about Mr. Munday on other occasions,
but could not recall when such conversations took place. Id. at 6, p. 49:6-16.
On January 22, 2013, PLPOA front desk reception clerk Sue Passant
complained to Mr. Munday about Ms. Murphy taking a long lunch hour. Docket No. 223 at 7, p. 55:12-19. Ms. Murphy testified that her immediate supervisor, Department of
Community Standards manager Margaret Gallegos, “came in and told me that Mr.
Munday was requiring that I contact Sue on an hourly basis so he would know where I
was at all times.” Id. After Ms. Gallegos told Ms. Murphy about Ms. Passant’s
complaint, Ms. Murphy told Ms. Gallegos that Mr. Munday had been acting
inappropriately towards her. Id. at 8, p. 57:13-22. Ms. Gallegos urged Ms. Murphy to
make a formal complaint to the board, but Ms. Murphy declined, explaining that doing
so would make her uncomfortable. Id. at 6, p. 52:12-16. At approximately 4:30 p.m.
that day, Ms. Gallegos contacted board president George Hatfield and told him about
her conversation with Ms. Murphy (the “complaint”). Docket No. 22-5 at 1. However, as
Ms. Murphy testified, Ms. Gallegos did not contact Mr. Hatfield at Ms. Murphy’s
Q. . . . Did you ask Margaret to forward your complaint to the board?
Q. So Margaret took it upon herself to complain to the board in January
2013 about Chip Munday?
A. She did it without me asking first to do it.
Q. Did you know she was going to do it?
A. No, not at that point.
Docket No. 22-3 at 6, pp. 51:24-52:8.
Mr. Hatfield conducted the investigation into the complaint with assistance from
other board members. Docket No. 26-1 at 1, ¶ 2. As part of the investigation, he
prepared the PLPOA Personnel Complaint January 2013 [Docket No. 22-5] (the
“investigation report”), which documents the steps that Mr. Hatfield and the board took
in investigating the complaint. Id. at 1, ¶ 3. Mr. Hatfield states that he prepared the
investigation report during the investigation by making entries shortly after interviews
and other events occurred. Id. at 1, ¶ 4.3
Ms. Murphy objects to the admissibility of the investigation report on hearsay
grounds. See Docket No. 23 at 5-6, ¶¶ 14, 21. It is unclear whether Ms. Murphy
argues that the investigation report is inadmissible in its entirety or whether she argues
that certain portions containing hearsay within hearsay are inadmissible. However, Mr.
Hatfield’s declaration states that the report “reflects the investigation I conducted and
my understanding of the interviews and evidence I received during that investigation.”
Docket No. 26-1 at 1-2, ¶¶ 3-5. The Court construes Mr. Hatfield’s declaration as
adopting the investigation report such that, if called as a witness, he would testify at trial
to the events and conclusions contained in the investigation report. Thus, to the extent
the report recounts the steps that Mr. Hatfield took and the conclusions he reached in
investigating the complaint, see, e.g., Docket No. 22-5 at 1 (“The . . Directors and
myself met at the PLPOA Administration building at the pre arranged time.”), Mr.
Hatfield could testify to such matters at trial and such evidence is therefore not hearsay.
See S.E.C. v. Carnicle, 216 F.3d 1088, at *1 (10th Cir. June 21, 2000) (unpublished)
(“Ex parte affidavits or any other type of sworn testimony are always admissible for
summary judgment purposes as long as the testimony is of a type that would be
admissible if the swearing witness testified at a trial on the matter.”). To the extent the
On the evening of January 22, 2013, Mr. Hatfield contacted board members Tim
Jennings, Rodney Profitt, and Kimberly Bradshaw and set a special board meeting
regarding the complaint. Docket No. 22-5 at 1. That evening, Mr. Hatfield also
contacted Ms. Murphy and asked her to provide the board with a written statement
regarding the complaint, Docket No. 21 at 5, ¶ 18. Ms. Murphy does not identify any
evidence to the contrary. Docket No. 23 at 5, ¶ 18.
On the morning of January 23, 2013, when the above-mentioned board
members gathered to meet regarding the complaint, Mr. Hatfield testified that “no one
had a prepared statement.” Docket No. 22-1 at 6, p. 23:5-12. Mr. Hatf ield testified that
he told “everyone concerned” that they had to submit a prepared statement as soon as
possible “because we were conducing interviews on it.” Id. at 23:5-20. Ms. Murphy
asserts that, although she requested more time, Mr. Hatfield gave her only ten minutes
investigation report itself contains hearsay statements, see, e.g., Docket No. 22-5 at 2
(“Don mentioned to me that Sue Passant (PLPOA Front Desk Reception Clerk) had
complained to him about both Martha and Margaret not putting in their hours.”), the
Court considers such statements not for the truth of the matter asserted, but for their
effect on Mr. Hatfield as the individual conducting the investigation. As a result, Ms.
Murphy’s hearsay objection is overruled.
Ms. Murphy asserts, without citation to the record, that “[t]here are no reports or
results from any alleged investigation by PLPOA.” Docket No. 20 at 6, ¶ 10. Ms.
Murphy asserts that the investigation report was “created solely for litigation” and that
Mr. Hatfield testified that two letters were the only documents prepared as a result of
the investigation. See Docket No. 23 at 5-6, ¶ 21 (citing Docket No. 24-2 at 2, pp.
13:21-14:14). However, at his deposition, Mr. Hatfield was not asked whether the two
letters were the only documents prepared as a result of the investigation and Ms.
Murphy provides no support for her assertion that the investigation report was created
solely for litigation. To the contrary, it appears that Mr. Hatfield was first asked about
the investigation report on page 39 of his deposition, see Docket No. 24-2 at 1, but
neither side provided that portion of Mr. Hatfield’s deposition. Thus, plaintiff has
identified no evidence that contradicts Mr. Hatfield’s declaration.
that morning to prepare her written statement. Docket No. 20 at 4, ¶ 7. 4 Ms. Murphy
submitted a written statement to the board, which stated that Mr. Munday “would
regularly come into the office I shared with Tonya Hamilton and involve himself in our
conversations. He would make rude suggestion[s] and tend to steer the conversation
towards a sexual connotation,” but also that Ms. Murphy ignored such behavior and did
not react “other than to discuss my situation with co workers.” Docket No. 21-7 at 1.
The statement described the Christmas party incident, but did not identify any other
specific incidents. It further stated: “This has been going on for about a year now. I’m
not the only person who has witnessed his behavior. I’m currently looking for new
employment because of the uncomfortable working conditions.” Id.
At approximately 9:45 a.m. on January 23, 2013, Mr. Hatfield reached Mr.
Munday, who was on vacation at the time, and informed him of the complaint. Docket
No. 22-5 at 1. The board members Mr. Hatfield, Mr. Profitt, and Ms. Bradshaw met at
the PLPOA office and, at approximately 11:02 a.m., began interviewing Ms. Murphy
while Ms. Gallegos was in the room. Docket No. 21 at 6, ¶ 22. 5 According to the
To the extent Ms. Murphy relies on plaintiff’s Exhibit N [Docket No. 20-14] in
support of this assertion, Ms. Murphy fails to establish that Exhibit N is proper summary
judgment evidence. Although Ms. Murphy testified to having written Exhibit N, there is
no explanation as to why or when she wrote it. Docket No. 21-3 at 7, pp. 62:14-64:23.
Moreover, Exhibit N does not bear Ms. Murphy’s name or signature and she has not
endorsed its accuracy. See generally Docket No. 20-14. As a result, Ms. Murphy has
failed to establish that it is appropriate for the Court to consider Exhibit N. See Howell
v. N.M. Dep’t of Aging & Long Term Servs., 398 F. App’x 355, 359 (10th Cir. 2010)
(unpublished) (“that document is not in the form of an affidavit or an unsworn
declaration and was not within the range of evidence that the district court could
consider on summary judgment”) (citation and quotations omitted)).
Ms. Murphy asserts that, during her interview, “Steve Milton was calling, texting
and emailing the perpetrator Munday.” Docket No. 20 at 4 (citing Docket No. 20-14 at
investigation report, Ms. Murphy appears to have discussed her written statement,
expressed that she felt uncomfortable because Mr. Munday had been keeping tabs on
her whereabouts, and, when asked what she thought Mr. Munday intended by his
actions, responded that he “wanted sex.” Docket No. 22-5 at 1. At 11:14 a.m., the
board excused Ms. Murphy and continued to discuss the complaint with Ms. Gallegos.
Docket No. 22-5 at 1.
At Mr. Hatfield’s request, Ms. Hamilton submitted a written statement. Id.; see
also Docket No. 22-11 at 2-3. According to her written statement, when Mr. Munday
was in the office that Ms. Hamilton and Ms. Murphy shared, he would “usually take
something we say out of context and turn it into something with sexual overtures,” but
Ms. Hamilton could not recall a specific example “because these types of things just
don’t bother me.” Docket No. 22-11 at 2-3. Ms. Hamilton’s written statement recalled
the September 2012 incident and that Ms. Murphy had confided in her at various times
regarding Mr. Munday’s behavior. Id. After reading her written statement, the board
interviewed Ms. Hamilton while Ms. Gallegos was present; Ms. Hamilton confirmed that
Ms. Murphy confided in her regarding incidents concerning Mr. Munday. Docket No.
22-5 at 1. At 12:10 p.m., both Ms. Hamilton and Ms. Gallegos were excused. Id. at 2.
The board decided to speak with the PLPOA’s attorney and that it would hold a special
board meeting on January 28, 2013. Id. Later that day, Mr. Hatfield spoke with the
PLPOA’s attorney. Id. Mr. Hatfield also spoke with Mr. Munday, who denied
5). PLPOA argues that Ms. Murphy’s support for this assertion is inadmissible hearsay
and speculation. Docket No. 22 at 4, ¶ 7. T he Court agrees with PLPOA that the cited
evidence lacks foundation and, for the reasons discussed above, cannot be considered.
purposefully making sexual advances and expressed his belief that Ms. Murphy’s time
card contained some irregularities. Id.
On January 24, 2013, Mr. Hatfield met with Mr. Arries and the two discussed Ms.
Murphy’s time cards. Id. Mr. Hatfield requested Ms. Murphy’s timesheets from
December 1, 2012 forward and noted that the sheets from December 4 through
December 14 contained some unusual entries. Id.
On Friday, January 25, 2013, Ms. Hamilton asked to meet with Mr. Hatfield
privately. Id. On Saturday, January 26, 2013, Ms. Hamilton and Mr. Hatfield met at Mr.
Hatfield’s home. Id. Ms. Hamilton told Mr. Hatfield that Ms. Murphy and Ms. Gallegos
had been turning in false time sheets and that Ms. Murphy was working fewer hours
than claimed on her time sheets and using the PLPOA car for personal errands. Id.
Ms. Hamilton told Mr. Hatfield that it was Ms. Gallegos who urged Ms. Murphy to
complain about the Christmas party incident. Id.
On Sunday, January 27, 2013, Mr. Hatfield spoke with Ms. Passant by phone,
who notified Mr. Hatfield that she had observed Ms. Murphy keeping irregular work
hours. Id. at 3. Mr. Hatfield asked Ms. Passant if she had witnessed any type of sexual
harassment from Mr. Munday and she replied that she had not observed anything that
could be considered inappropriate. Id. Ms. Passant appears to have submitted a
written statement to that effect to the board. See Docket No. 22-11 at 4.
On Monday, January 28, 2013 at 8:30 a.m., board members Mr. Hatfield, Mr.
Profitt, Ms. Bradshaw, Roger Scott, and BJ Jones met at the PLPOA administration
building and, at 9:00 p.m., were joined by Mr. Jennings. Docket No. 22-5 at 3. The
board went into an executive session, where the board members were briefed on this
investigation. Id. The board decided to interview Mr. Starr and Mr. Gallion because
both men sat at Ms. Murphy’s table during the Christmas party. Id. Later that day, the
board met with Mr. Starr who stated that, at the Christmas party, he saw Mr. Munday
kiss Ms. Murphy beside the fireplace and rub her back when she was at the bar. Id.
The board also met with Mr. Gallion, who told the board that he did not witness any
inappropriate actions while he was attending the Christmas party. Id. Mr. Gallion
submitted a written statement to that effect. Docket No. 22-11 at 5.
After meeting with PLPOA attorneys, the board decided to request a written
statement from Ms. Gallegos and an additional written statement from Ms. Murphy,
although it is not clear whether Ms. Murphy was informed of this request because
Monday, January 28 was Ms. Murphy’s day off. Docket No. 22-5 at 4. Later that day
Mr. Hatfield received an email from Mr. Munday. Docket No. 22-11 at 7-8. Mr.
Munday’s email stated that he had instituted operational chang es within the Department
of Community Standards and received complaints regarding Ms. Murphy’s irregular
work schedule, including one day where Ms. Murphy took an extended lunch, which Mr.
Munday later learned was to deal with a family emergency. Id. at 7. Mr. Munday
denied engaging in any inappropriate conduct towards Ms. Murphy at the Christmas
party or at any other time while at PLPOA. Id. at 7-8. Mr. Munday stated that he would
not accept any discipline from the board with respect to the complaint. Id. at 8. Mr.
Hatfield shared Mr. Munday’s email with the board. Docket No. 22-5 at 4.
On January 30, 2013, Ms. Gallegos provided the board with a written statement,
recommending that the PLPOA maintain a harassment free workplace, institute an
annual harassment training program for managers, staff, and board members, create
an environment where employees feel free to raise harassment-related concerns, and
establish a zero tolerance for retaliation. Id. Ms. Gallegos declined to issue a
recommendation regarding whether Mr. Munday should be disciplined. Docket No. 21
at 8, ¶ 30; Docket No. 22-10 at 1. After speaking with Ms. Gallegos, Mr. Hatfield
learned that Ms. Murphy called in sick the previous day and had requested that Ms.
Gallegos approve additional time off to deal with stress. Docket No. 22-5 at 4. 6 Mr.
Hatfield spoke again with Mr. Arries, who told Mr. Hatfield that Ms. Murphy had not
previously reported inappropriate behavior. Id.
On February 1, 2013, the board received a written statement from Mr. Starr. Id.
at 4; see also Docket No. 22-11 at 6. Mr. Hatfield interpreted Mr. Starr’s written
statement as indicating that Mr. Starr had not personally witnessed any inappropriate
behavior, but rather that Ms. Murphy merely told Mr. Starr what happened. Docket No.
22-5 at 4. Mr. Hatfield concluded that Mr. Starr’s written statement was inconsistent
with what he had told the board in person. Id. at 4-5.7 Over the next two days, Mr.
Hatfield updated board members on the investigation, and the board agreed to hold an
It appears that Ms. Murphy did not return to work at PLPOA, but continued to
take sick time and vacation time until February 14, 2013, at which time she informed
PLPOA that she had been constructively discharged. See Docket No. 21-10.
Although Ms. Murphy appears to assert that Mr. Hatfield’s interpretation of Mr.
Starr’s written statement was incorrect, she does not identify any evidence suggesting
that her interpretation is the only reasonable one or that Mr. Hatfield did not genuinely
believe Mr. Starr’s written statement was inconsistent with his verbal statements to the
board. See Docket No. 23 at 7, ¶ 31.
executive session on Monday, February 3, 2013. Id. at 5.
On February 3, 2013, the board met and discussed the complaint. Id. at 5. Four
board members voted in favor of and two board members voted against “unfounding”
the complaint. Id. Mr. Profitt volunteered to draft a letter of caution to Mr. Munday as
well as a letter with the board’s findings to Ms. Murphy. Id. The board determined that,
in the future, Mr. Arries would handle any irregularities with respect to Ms. Murphy’s
time sheets. Id.
On February 8, 2013, Mr. Hatfield sent a letter to Ms. Murphy on behalf of the
board. Docket No. 22-10. The letter stated, in part:
By consensus, the board determined that events occurred, which may have
been questionable. Further, also by consensus, the board determined that
certain employees perceived these events in different ways that clouded
specifics. Finally, by consensus, the board determined that other motives
were at work that may have prompted this complaint. Without sufficient
evidence verifying the complaint, the board will not take any disciplinary
The board values your service to PLPOA. It has come to our attention you
are taking a great deal of time off since this complaint was made – maxing
out both sick leave time and vacation time. The board is concerned about
this, and encourages you to return to work and a normal routine. If you need
additional support, please talk to your supervisor. Mr. Munday will no longer
be handling personnel issues; those matters will now be the responsibility of
Mr. Arries, and you may contact him as well if there are other issues to
Id. at 1-2. Ms. Murphy denies any allegations that she falsified time sheets or engaged
in any improprieties with respect to her work schedule. Docket No. 23 at 6, ¶¶ 27-28.
The same day, Mr. Hatfield sent Mr. Munday a letter on behalf of the board.
Docket No. 22-9 at 1. The board’s letter to Mr. Munday contained a paragraph
recounting the board’s findings that was very similar to the paragraph contained in the
board’s letter to Ms. Murphy, except that, in the letter to Mr. Munday, the phrase “which
may have been questionable” was deleted. Compare id., with Docket No. 22-10 at 1.
Ms. Murphy asserts that Mr. Hatfield intentionally deleted the phrase “which may have
been questionable” from the letter to Mr. Munday, but does not cite any evidence in
support of such an assertion. Docket No. 20 at 2-3, ¶ 2. PLPOA denies that the
omission was intentional. Docket No. 22 at 3, ¶ 2. The board’s letter to Mr. Munday
also directed that review of employee time sheets and disciplinary matters be handled
by Mr. Arries, that all employees participate in diversity training, that all personnel
policies be reviewed, and that staff review whether there is sufficient accountability of
employee time on the job. Docket No. 22-9 at 2. The board expressed displeasure
with the tenor of Mr. Munday’s email and stated that “[w]e sincerely hope the
frustrations expressed in your statement do not translate into action upon your return”
and “expect professional restraint and normalcy in going forward.” Id. On March 11,
2013, Mr. Munday completed the PLPOA eLearning course Preventing Harassment
2013-2014 for Managers 2-hour. Docket No. 22-6.
On February 8, 2013, Ms. Murphy advised Ms. Gallegos that she had retained
an attorney. Docket No. 21-10. 8 On February 13, 2013, Mr. Arries emailed Ms. Murphy
advising her that, pursuant to the employee guidelines, employees who fail to report for
work for two consecutive working days are considered to have voluntarily resigned. Id.
On February 14, 2013, Ms. Murphy replied, stating “I don’t resign. My case is
It is unclear whether Ms. Murphy had received the board’s letter at the time she
emailed Ms. Gallegos.
considered constructive discharge per my attorney” and directed that future contact be
made through plaintiff’s counsel. Id.
C. Procedural History
On December 20, 2013, Ms. Murphy filed this case. Docket No. 1. Ms. Murphy
brings claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, for
hostile work environment and retaliation on the basis of gender. Id. at 8-9.9 On
October 23, 2014, Ms. Murphy filed a motion for summary judgment, seeking summary
judgment in her favor “as to all of the elements of her claims.” Docket No. 20 at 14. On
October 27, 2014, PLPOA filed a motion for summary judgment, seeking summary
judgment in its favor on all of Ms. Murphy’s claims. Docket No. 21 at 1.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
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); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed f act is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
Ms. Murphy’s complaint also alleges that PLPOA subjected her to “disparate
treatment,” Id. at 8, ¶ 40, but Ms. Murphy does not appear to pursue her discrimination
claim under such a disparate treatment theory.
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
However, “[w]hen, as in this case, the moving party does not bear the ultimate
burden of persuasion at trial, it may satisfy its burden at the summary judgment stage
by identifying a lack of evidence for the nonmovant on an essential element of the
nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th
Cir. 2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998))
(internal quotation marks omitted). “Once the moving party meets this burden, the
burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513,
1518 (10th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The
nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex,
477 U.S. at 324; see Fed. R. Civ. P. 56(e). “To avoid summary judgment, the
nonmovant must establish, at a minimum, an inference of the presence of each
element essential to the case.” Bausman, 252 F.3d at 1115 (citing Hulsey v. Kmart,
Inc., 43 F.3d 555, 557 (10th Cir.1994)). “In applying this standard, we view all facts and
any reasonable inferences that might be drawn from them in the light most favorable to
the nonmoving party.” Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th
A. Hostile Work Environment
Sexual harassment that is sufficiently serious qualifies as unlawful sex
discrimination under Title VII. Meritor Savs. Bank v. Vinson, 477 U.S. 57, 67 (1986).
Ms. Murphy can establish a claim of a hostile work environment based on unlawful sex
discrimination by showing (1) that she was discriminated against because of her sex,
and (2) that the discrimination was sufficiently severe or pervasive so as to alter her
conditions of employment. Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th Cir.
2012). To establish a hostile work environment claim, Ms. Murphy must show that the
environment was both “objectively and subjectively hostile or abusive.” Id. (citation
omitted). Ms. Murphy must also show that defendant is liable for any unlawful incidents
of sexual harassment. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998);
Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). 10
1. Severe or Pervasive
To establish that her workplace was hostile, Ms. Murphy must provide evidence
showing that the workplace was “permeated with discriminatory intimidation, ridicule,
and insult, that [was] sufficiently severe or pervasive to alter the conditions of [her]
employment and create an abusive working environment.” Herrera v. Lufkin Indus.,
Inc., 474 F.3d 675, 680 (10th Cir. 2007). Severity and pervasiveness, while
independent and equal grounds, are inversely related to a certain degree; “‘a sufficiently
For purposes of resolving this motion, the Court assumes, without deciding,
that the claimed harassment was gender-based. See Chavez v. New Mexico, 397 F.3d
826, 833 (10th Cir. 2005) (holding that plaintiff must prove harassment was because of
severe episode may occur as rarely as once . . . , while a relentless pattern of lesser
harassment that extends over a long period of time also violates the statute.’” Tademy
v. Union Pac. Corp., 614 F.3d 1132, 1144 (10th Cir. 2008) (quoting Cerros v. Steel
Techs., Inc., 288 F.3d 1040, 1047 (7th Cir. 2002)). Severity and pervasiveness are
evaluated according to the totality of the circumstances, considering such factors as
“the frequency of the conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with
an employee’s work performance.” Harsco Corp. v. Renner, 475 F.3d 1179, 1187 (10th
Cir. 2007) (listing factors to be considered in determining whether environment is hostile
As a threshold matter, Ms. Murphy does not, as it is her burden to do, identif y
those incidents of harassment that make up her hostile work environment claim. Ms.
Murphy’s motion references only the September 2012 and Christmas party incidents.
See Docket No. 20 at 3-4, ¶ 4; id. at 6, ¶ 11. Ms. Murphy’s response to PLPOA’s
motion for summary judgment sheds no additional light on this question. See generally
Docket No. 23. Although Ms. Murphy is silent in response to PLPOA’s assertion that
her hostile work environment claim consists of the five incidents identified in her
complaint, see Docket No. 21 at 4, ¶ 8; Docket No. 23 at 4, ¶ 8, it w ould be a stretch to
construe her silence as affirmatively setting forth a legal theory. Moreover, as
discussed above, Ms. Murphy identifies specific evidence in support of the September
2012 and Christmas party incidents, but does not do so with respect to the January 23,
2012, February 14, 2012, and November 2012 incidents. Her failure to do so may
indicate that she no longer bases her claim on those three incidents. Regardless of
what Ms. Murphy’s intention may be with respect to the alleged incidents of
harassment, the allegations in Ms. Murphy’s unverified complaint are insufficient to
defeat a motion for summary judgment, see Celotex, 477 U.S. at 324, as to those
incidents she fails to support by “reference to affidavits, deposition transcripts, or
specific exhibits.” See Adler, 144 F.3d at 671.
The Court therefore turns to the question of whether the September 2012 and
Christmas party incidents – the only incidents that Ms. Murphy has properly supported
by citation to the record – are sufficiently severe or pervasive to establish a hostile work
environment claim. PLPOA argues that no single incident, by itself, rises to the level of
severity required to create a hostile work environment and that the incidents, when
considered together, are not sufficiently pervasive. Id. at 11-12. PLPOA contends that
insufficient evidence exists upon which to conclude that Ms. Murphy subjectively
perceived her work environment to be abusive. Id. at 13. Ms. Murphy offers no
meaningful response to PLPOA’s arguments on this issue. Ms. Murphy’s response
brief to PLPOA’s motion for summary judgment argues, without citation to the record,
that “Murphy has proven that the conduct from Munday was unwelcome, offensive,
directed at Murphy because of her gender, the conduct was sufficiently severe or
pervasive to alter the conditions of her employment by creating a hostile work
environment.” Docket No. 23 at 9. Ms. Murphy’s motion for summary judgment argues,
“There are no material facts in dispute. Murphy was sexually harassed by Munday.”
Docket No. 20 at 14. Such arguments are conclusory and, more importantly, fail to
identify specific facts to create a genuine issue for trial. It is not incumbent upon the
Court to parse the record for evidence supporting Ms. Murphy’s claims or to articulate a
legal theory on her behalf.
The Court is otherwise satisfied that PLPOA is entitled to summary judgment on
this issue. The September 2012 and Christmas party incidents are not, by themselves,
sufficiently severe so as to alter the conditions of Ms. Murphy’s employment. The
evidence Ms. Murphy identifies in support of the September 2012 incident suggests
only that Mr. Munday made tasteless “implications,” Docket No. 22-11 at 2, but Ms.
Murphy does not otherwise provide sufficient detail or context regarding the September
2012 incident so as to conclude that it rises to the lev el of actionable conduct or identify
evidence establishing that she was even present during the incident. See Bertsch v.
Overstock.com, 684 F.3d 1023, 1028 (10th Cir. 2012) (“A line m ust be drawn between
actionable conduct and conduct that is merely insensitive, tasteless, or vulgar. Title
VII’s mandate is not to ensure workplace harmony or create a finishing school.”).
Although there is evidence that the Christmas party incident understandably caused
Ms. Murphy to be upset, the incident is not, by itself, sufficiently severe so as to create
an objectively hostile work environment. Cf. Davis v. U.S. Postal Serv., 142 F.3d 1334,
1341 (10th Cir. 1998) (“A rational jury could find that . . . regular unwelcome hugging
and kissing combined with . . . an assault . . . is objectively hostile.”); Sprague v. Thorn
Americas, Inc., 129 F.3d 1355, 1366 (10th Cir. 1997) (concluding that incident where
co-worker “put his arm around me and I caught him looking down my dress” was
insufficient to establish a hostile work environment). Ms. Murphy does not meaningfully
Neither are the September 2012 and Christmas party incidents, when considered
together, sufficiently pervasive so as to create an objectively abusive environment.
Moreover, the September 2012 and Christmas party incidents fall short of the “steady
barrage” of actionable behavior that constitute actionable harassment. Chavez, 397
F.3d at 832; Morris v. City of Colo. Springs, 666 F.3d 654, 666 (10th Cir. 2012) (isolated
comments and touchings generally do not constitute actionable harassment); cf.
Sprague, 129 F.3d at 1366 (concluding that five separate incidents spread over a span
of 16 months were insufficient to establish existence of abusive work environment).
In the absence of argument or the identification of specific facts to the contrary,
the Court finds that Ms. Murphy has failed to create a genuine issue for trial as to the
severity and pervasiveness of Mr. Munday’s alleged conduct.11
2. Defendant’s Liability for Acts of Supervisor
Even assuming a reasonable juror could find that Ms. Murphy has sufficiently
established a prima facie case of sexual harassment, Ms. Murphy’s claims fail on the
issue of liability. The Supreme Court has ruled that employers are not automatically
liable for sexual harassment perpetrated by their employees. Ellerth, 524 U.S. at 765;
Faragher, 524 U.S. at 807. The Court, however, held that employers may be liable for
the conduct of their employees under two theories: (1) negligence and (2) vicarious
liability. Helm v. Kan., 656 F.3d 1277, 1285 (10th Cir. 2011). Under the neg ligence
theory, “‘an employer is directly liable for an employee’s unlawful harassment if the
employer was negligent with respect to the offensive behavior.’” Kramer v. Wasatch
Even assuming that Ms. Murphy sufficiently identified and supported the five
incidents of harassment alleged in her complaint, Ms. Murphy does not meaningfully
contradict PLPOA’s argument that such incidents are insufficiently severe or pervasive
so as to establish a hostile work environment claim. Docket No. 21 at 11-13.
Cnty. Sheriff’s Office, 743 F.3d 726, 737 (10th Cir. 2014) (quoting Vance v. Ball State
Univ., --- U.S. ----, 133 S. Ct. 2434, 2441 (2013)). If, however, the harasser is a
supervisor within the meaning of Title VII, see Vance, 133 S. Ct. at 2443, “the employer
may be vicariously liable for the conduct, depending on the circumstances.” Id. When
a supervisor’s harassment “culminates in a ‘tangible employment action,’ the employer
is strictly liable for sex discrimination, with no defense.” Id. When a supervisor’s
harassment does not culminate in a tangible employment action, the employer is
shielded from vicarious liability if the employer can prove the two prongs of what is
known as the Faragher/Ellerth defense. Ellerth, 524 U.S. at 765; Helm, 656 F.3d at
1285. Here, the parties do not dispute that Mr. Munday was Ms. Murphy’s supervisor
within the meaning of Title VII.
a. Tangible Employment Action
“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.” Ellerth, 524
U.S. at 762. A tangible employment action will, in most cases, inflict direct economic
harm, id., but economic harm is not necessary in every case. Kramer, 743 F.3d at 738.
“However, neither ‘a bruised ego’ nor a demotion without a concurring change in pay,
benefits, duties, or prestige is enough.” Id. at 739 (emphasis in original). In addition,
“[a] tangible employment decision requires an official act of the enterprise, a company
act.” Ellerth, 524 U.S. at 762. In the Tenth Circuit, one test to illustrate whether a given
harm is a tangible employment action “is to ask whether a co-worker could have
inflicted the same harm as easily. If the answer is yes, then the harm is not a tangible
employment action.” Kramer, 743 F.3d at 739; see also Ellerth, 524 U.S. at 762 (“A coworker can break a co-worker’s arm as easily as a supervisor, and anyone who has
regular contact with an employee can inflict psychological injuries by his or her
PLPOA argues that Ms. Murphy suffered “no tangible employment action
because the board in no way changed the status, terms or conditions of Murphy’s
employment” and that, to the contrary, the board “encouraged her to return to work with
assurances that the workplace would be ‘comfortable.’” Docket No. 21 at 14. Ms.
Murphy does not directly respond to PLPOA’s argument or identify any evidence that a
tangible employment action, in the traditional sense, took place. Moreov er, no such
evidence is apparent to the Court.
Ms. Murphy’s briefs, generously construed, could be interpreted as asserting that
her constructive discharge was a tangible employment action. See, e.g., Docket No. 23
at 12 (“Murphy was constructively discharged from Defendant because the Defendant
refused to properly investigate the claims and reprimand Munday.”). The Supreme
Court has recognized that the Faragher/Ellerth defense may not be available to an
employer “if the plaintiff quits in reasonable response to an employer-sanctioned
adverse action officially changing her employment status or situation, for example, a
humiliating demotion, extreme cut in pay, or transfer to a position in which she would
face unbearable working conditions.” Pa. State Police v. Suders, 542 U.S. 129, 134
(2004). However, in such a case the plaintiff must establish “working conditions so
intolerable that a reasonable person would have felt compelled to resign.” Id. at 147.12
Ms. Murphy makes no such showing. Cf. Chapman v. Carmike Cinemas, 307 F. App’x
164, 169 (10th Cir. 2009) (unpublished) (holding that, because plaintiff attributed
constructive discharge to her psychological state, rather than to an official act of the
employer, employer could not invoke Ellerth/Faragher defense); see also E.E.O.C. v.
PVNF, L.L.C., 487 F.3d 790, 806 (10th Cir. 2007) (“in constructive discharge cases the
question is not whether the employee’s resignation resulted from the employer’s
actions, but whether the employee had any other reasonable choice to resign in light of
those actions” (quotations omitted)). Ms. Murphy presents no evidence or argument
that, despite the remedial measures adopted by the board as a result of the
investigation, a reasonable person in her position would have felt compelled to resign.
Because Ms. Murphy has failed to show that the claimed harassment culminated in a
tangible employment action, PLPOA is entitled to assert the Faragher/Ellerth defense.
b. Defendant’s Faragher/Ellerth Defense
To establish the Faragher/Ellerth defense, an employer must come forward with
evidence: (1) that it exercised reasonable care to prevent and promptly correct any
sexually harassing behavior, and (2) that the plaintiff employee unreasonably failed to
take advantage of any preventive or corrective opportunities provided by the employer.
Faragher, 524 U.S. at 807.
It is unclear why Ms. Murphy cites Colorado law in support of her constructive
discharge argument. Docket No. 23 at 13 (“Colorado recognizes the doctrine of
constructive discharge.” (citing Colorado law)). Although there appears to be little
difference between Colorado and federal constructive discharge law, it is federal
constructive discharge law that applies to Ms. Murphy’s Title VII claims. See Suders,
542 U.S. at 134.
The first element of the Faragher/Ellerth defense requires that an employer
exercise reasonable care to prevent sexual harassment and correct promptly any
sexual harassment that has occurred. Pinkerton v. Colo. Dep’t of Transp., 563 F.3d
1052, 1062 (10th Cir. 2009). As to prevention, the Tenth Circuit has held that an
employer can satisfy the prevention requirement by showing the existence and
dissemination of a valid sexual harassment policy. Helm, 656 F.3d at 1288. Here, it is
undisputed that PLPOA has a sexual harassment policy and disseminated it to Ms.
Murphy. Docket No. 21 at 3, ¶¶ 1-2; Docket No. 23 at 10. Althoug h Ms. Murphy
suggests that PLPOA should have earlier instituted anti-discrimination training, Docket
No. 20 at 11, where an employer has a valid, disseminated sexual harassment policy, it
is not clear that anti-discrimination training is required. See Helm, 656 F.3d at 1289
(“Numerous courts have held that employers acted reasonably as a matter of law when
they adopted valid sexual harassment policies, distributed those policies to employees
via employee handbooks, and either provided no sexual harassment training or
provided training only to managers.”). In the absence of argument to the contrary, the
Court finds that PLPOA has a facially effective anti-harassment policy sufficient to
satisfy the prevention requirement.
The Tenth Circuit has held that an employer can establish the correction
requirement by showing that it acted promptly to investigate or address a complaint of
harassment. Helm, 656 F.3d at 1290. The “most significant immediate measure an
employer can take in response to a sexual harassment complaint is to launch a prompt
investigation to determine whether the complaint is justified.” Id. (citing Swenson v.
Potter, 271 F.3d 1184, 1192 (9th Cir. 2001)). Here, it is undisputed that Mr. Hatf ield
began an investigation on January 22, 2013, the same day he received the complaint,
that the investigation concluded on February 3, 2013, and that Ms. Murphy was notified
of the results on February 8, 2013. Docket No. 22-5 at 1, 5; Docket No. 22-10. Mr.
Hatfield requested and received witness statements from multiple PLPOA employees
and interviewed (a) both PLPOA employees who worked directly with Ms. Murphy and
Mr. Munday and (b) PLPOA employees who sat at Ms. Murphy’s table during the
Christmas party. See generally Docket No. 22-5. Although the board voted in favor of
“unfounding” Ms. Murphy’s complaint and decided not to discipline Mr. Munday, the
board put multiple measures in place, not the least of which was transferring
responsibility for personnel investigations from Mr. Munday to Mr. Arries, to minimize
contact between Ms. Murphy and Mr. Munday, and instituting mandatory “diversity”
training for all employees. Docket 22-9 at 2. There is no evidence in the record that,
after these measures were instituted, Mr. Munday engaged in any harassing behavior
or that such measures would not have been effective in preventing incidents similar to
what Ms. Murphy complained of.
Ms. Murphy principally argues that PLPOA has not satisfied the correction
requirement because Mr. Hatfield inserted his personal opinions into the investigation
and should have used an independent investigator. Docket No. 23 at 10-11. However,
the mere fact that Ms. Murphy disagrees with the investigation’s conclusion does not,
by itself, render the investigation unreasonable. Moreover, there is no evidence that
Ms. Murphy ever requested that PLPOA enlist a third party to investigate the complaint
or that, absent such a request, PLPOA was required to do so. 13
Ms. Murphy argues that the investigation was flawed because, on the morning of
January 23, 2013, she was given only ten minutes to write a statement regarding the
complaint. Docket No. 20 at 12; Docket No. 23 at 11. However, Ms. Murphy does not
dispute that, on the evening of January 22, 2013, Mr. Hatfield contacted Ms. Murphy
and asked her to provide a written statement. Docket No. 21 at 5, ¶ 18. Moreover, Ms.
Murphy does not indicate what, if any, additional information she would have included in
her written statement if given more time or explain why she was unable to provide
whatever information she did not have time to add to her written statement to the board
during her interview or at a later time.
Ms. Murphy suggests that the PLPOA investigation was ineffective because Mr.
Hatfield did not interview Ms. Johnson. Docket No. 20 at 11. However, Ms. Murphy
does not explain, and it is not apparent, how Mr. Hatfield interviewing Ms. Johnson
would have led to different remedial actions by the board.
PLPOA has established that it acted promptly to correct Mr. Munday’s alleged
behavior. Ms. Murphy’s arguments to the contrary are unsupported by citation to the
record and otherwise without merit. And there is no evidence suggesting that, after the
investigation concluded, Mr. Munday continued to engage in inappropriate behavior
towards Ms. Murphy. PLPOA has therefore established the first element of the
To the extent Ms. Murphy argues that PLPOA should have initiated an
investigation based upon her February 2012 conversation with Mr. Arries, there is no
evidence that Ms. Murphy provided Mr. Arries with sufficient information so as to trigger
PLPOA’s duty to correct Mr. Munday’s behavior. Cf. Helm, 656 F.3d at 1290 (“Helm
provided absolutely no details about Judge Stewart’s conduct, nor does the record
suggest that Helm even mentioned sexual harassment.”).
Faragher/Ellerth defense. Cf. Helm, 656 F.3d at 1291.
The second element of the Faragher/Ellerth defense requires the employer to
demonstrate that the employee unreasonably failed to take advantage of its
preventative or corrective policies. Helm, 656 F.3d at 1291. Although generally this
element is satisfied based upon an employer’s showing that the employee
unreasonably failed to use an employer’s complaint procedure, an employer is not so
limited in proving that “an employee failed to fulfill the corresponding obligation of
reasonable care to avoid harm.” Faragher, 524 U.S. at 807-08. Here, PLPOA argues
that, because it is undisputed that Ms. Murphy did not return to work, she failed to avail
herself of whatever corrective benefits the investigation would have provided her.
Docket No. 21 at 16. Ms. Murphy provides no argument to the contrary and, as
discussed above, her assertion of constructive discharge is unsupported. As a result,
the Court concludes that PLPOA has satisfied its burden of establishing that Ms.
Murphy unreasonably failed to take advantage of any corrective opportunities provided
by PLPOA to avoid harm. See Faragher, 524 U.S. at 807. PLPOA has therefore
established the Faragher/Ellerth defense.
For the foregoing reasons, PLPOA’s motion for summary judgment on Ms.
Murphy’s hostile work environment claim is granted.
PLPOA argues that Ms. Murphy fails to identify sufficient evidence upon which to
establish a Title VII retaliation claim. Docket No. 21 at 16-17. Title VII prohibits
retaliation against individuals who oppose discriminatory employment practices in
complaints or investigations of employment practices prohibited by Title VII. See 42
U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff must
prove three elements: “(1) protected employee action; (2) adverse action by an
employer either after or contemporaneous with the employee’s protected action; and (3)
a causal connection between the employee’s action and the employer’s adverse
action.” Jencks v. Modern Woodmen of Am., 479 F.3d 1261, 1264-65 (10th Cir. 2007).
As an initial matter, Ms. Murphy’s briefs fail to meaningfully address these
elements and, as a result, it is not clear what, if any, retaliation Ms. Murphy claims to
have suffered. “A challenged employment action is adverse for the purposes of a claim
for retaliation under Title VII if a reasonable employee would have found it materially
adverse,” McGowan v. City of Eufala, 472 F.3d 736, 742 (10th Cir. 2006) (quotations
omitted), such that the action “would likely have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. v.
White, 548 U.S. 53, 60 (2006) (quotations omitted). Ms. Murphy does not claim that
PLPOA terminated her employment and there is no evidence that Ms. Murphy “wanted
to keep working [at PLPOA].” Cf. McInerney v. United Air Lines, Inc., 463 F. App’x 709,
716 (10th Cir. 2011) (unpublished). Rather, Ms. Murphy argues that she was
constructively discharged. Docket No. 23 at 13. A plaintiff may “satisfy the adverse
employment action requirement by demonstrating that [s]he was constructively
discharged.” Fischer v. Forestwood Co., Inc., 525 F.3d 972, 980 (10th Cir. 2008).
However, as discussed above, plaintiff fails to identify sufficient evidence upon which a
reasonable juror could conclude that “a reasonable person in [Ms. Murphy ’s] position
would feel forced to resign.” See id. (quotations omitted). Thus, Ms. Murphy fails to
establish that she suffered an adverse employment action.
Ms. Murphy contends that “in response to Murphy’s complaint, defendant
retaliated against Murphy by claiming that she was falsifying her time.” Docket No. 23
at 13. In support of her argument, Ms. Murphy cites Mr. Hatfield’s deposition testimony,
where he states that he first learned of allegations that Ms. Murphy was falsifying her
time “when I was interviewing Tonya Hamilton.” Docket No. 22-1 at 5, p. 18:5-11.
However, Ms. Murphy’s own deposition testimony contradicts her argument. Ms.
Murphy testified that concerns regarding her time-related improprieties were raised
before her complaint about Mr. Munday’s behavior. Docket No. 22-3 at 7-8, pp. 56:2357:25. As a result, Mr. Hatfield’s investigation into allegations that Ms. Murphy was
falsifying her time sheets cannot be reasonably construed as retaliation.
Ms. Murphy argues that an employer’s “failure to investigate an internal
complaint of discrimination may constitute retaliation.” Docket No. 23 at 11. In support
of her argument, Ms. Murphy cites McInerney, 463 F. App’x at 716. However, unlike
the present case, in McInerney, the Tenth Circuit found sufficient evidence upon which
to conclude that Ms. McInerney suffered an adverse employment action. Id. Having
concluded that Ms. McInerney satisfied the first and second elements of her prima facie
case, the Tenth Circuit concluded that the defendant’s complete failure to investigate
Ms. McInerney’s discrimination complaint could give rise to an inference of a retaliatory
motive with respect to the third element of the prima facie case. Id. at 718. Here, any
deficiencies Ms. Murphy may have identified in PLPOA’s investigation of the complaint
do not rise to the level of establishing that PLPOA entirely failed to investigate the
complaint. Cf. id. As a result, Ms. Murphy’s reliance on McInerney is unavailing.
Because Ms. Murphy fails to identify sufficient evidence to establish a prima
facie case of retaliation, PLPOA is entitled to summary judgment on Ms. Murphy’s
For the foregoing reasons, it is
ORDERED that Ms. Murphy’s Motion for Summary Judgment as to Liability
[Docket No. 20] is DENIED. It is further
ORDERED that PLPOA’s Motion for Summary Judgment [Docket No. 21] is
GRANTED. It is further
ORDERED that this case is dismissed in its entirety.
DATED April 20, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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