Scott v. City of Sioux City, Iowa et al

Filing 66

MEMORANDUM OPINION and ORDER: Granting in Part and Denying in Part 46 Motion for Summary Judgment: Granting 48 Motion to Exclude Testimony of Experts: See text of Order for further information. Signed by Judge Mark W Bennett on 12/22/14. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
BRITTANY SCOTT,
No. C 13-4064-MWB
Plaintiff,
vs.
CITY OF SIOUX CITY, IOWA, and
PAUL ECKERT, Individually,
Defendants.

MEMORANDUM OPINION AND
ORDER REGARDING THE
DEFENDANT CITY’S MOTION FOR
SUMMARY JUDGMENT AND
MOTION TO EXCLUDE
TESTIMONY BY PLAINTIFF’S
EXPERTS, BOTH JOINED BY THE
INDIVIDUAL DEFENDANT

___________________________
TABLE OF CONTENTS
I. 

INTRODUCTION........................................................................... 2 
A. 
Factual Background ............................................................... 2 
B. 
Procedural Background ........................................................... 5 

II. 

LEGAL ANALYSIS ........................................................................ 6 
A. 
The City’s Motion For Summary Judgment ................................... 6 
1. 
Arguments of the parties .................................................. 6 
2. 
Standards for summary judgment ....................................... 8 
3. 
Analysis ...................................................................... 9 
a. 
Elements of a retaliation claim .................................. 9 
b. 
The continuing violation claim ................................ 10 
i. 
The Morgan standard .................................. 10 
ii. 
Application of the Morgan standard ................. 13 
iii.  Scott’s authorities ........................................ 15 
c. 
A “hostile retaliatory environment” claim .................. 19 
d. 
Timely incident claims .......................................... 22 
4. 
Summary ................................................................... 24 

B. 

III. 

The City’s Motion To Exclude Testimony Of Experts ..................... 25 
1. 
Additional factual background......................................... 25 
2. 
Arguments of the parties ................................................ 26 
3. 
Analysis .................................................................... 27 
a. 
Applicable standards ............................................ 27 
b. 
Application of the standards ................................... 29 
i. 
Dr. Brown’s opinions ................................... 29 
ii. 
Dr. Fitzgerald’s opinions ............................... 30 
4. 
Summary ................................................................... 32 

CONCLUSION ............................................................................ 32 

A long-time city employee asserts claims, pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., as amended, and the Iowa Civil Rights Act
(ICRA), IOWA CODE CH. 216, that, over a period of almost nine years, she was retaliated
against by the city and the former city manager for her 2004 complaint that the city
manager sexually harassed her from 2000 to 2004. The city has moved for summary
judgment on the employee’s retaliation claims and to exclude testimony from two of her
experts, in whole or in part. The former city manager has joined in these motions, and
the employee has resisted them.
I.
A.

INTRODUCTION
Factual Background

I set forth here only those facts, disputed and undisputed, sufficient to put in
context the parties’ arguments concerning the defendants’ Motion For Summary
2

Judgment. Thus, the “universe” of facts stated here is considerably smaller than the
complete set of facts, undisputed and disputed, set forth in the parties’ various statements
of fact. Unless otherwise indicated, the facts recited here are undisputed, at least for
purposes of summary judgment. If necessary, I will discuss additional factual allegations,
and the extent to which they are or are not disputed or material, in my legal analysis.
Plaintiff Brittany Scott, a long-time employee of the defendant City of Sioux City,
Iowa, was hired by the City on or about March 31, 1997, as a full-time administrative
assistant. Scott alleges that the former city manager, defendant Paul Eckert, sexually
harassed her from 2000 until March 23, 2004. In March 2004, in an investigative
interview arising from allegations that Eckert had sexually harassed various female
employees, Scott complained that Eckert had sexually harassed her. Scott concedes that
“active” harassment by Eckert abruptly stopped after her complaint. She alleges that,
instead, retaliation by Eckert and the City began, and continued over the next several
years.
Specifically, Scott contends that the defendants’ retaliation consisted of the
following actions:



at some time between September 2004 and March 2005, Eckert removed
Scott from the City Council’s Agenda Review Committee;



in the fall of 2005, Eckert removed Scott from her position as Leader
Assistant to the Executive Leader of the Emergency Operations Committee
at Fire Station #3;



in the fall of 2005, Eckert spread rumors of a sexual nature about Scott and
another City employee, Aaron Kraft;



in March 2006, the City transferred Scott to a position out of City Hall, in
the Public Works-Field Services Headquarters (Field Services);

3



on June 12, 2006, the City appointed a new City Clerk without giving Scott
the opportunity to apply for the position;



on January 1, 2008, Eckert demoted Scott from Administrative Assistant to
Administrative Secretary;



in late 2008, Eckert required Scott to give up her private office and share a
work station with two part-time Clerical Assistants;



on June 18, 2011, the City cut Scott’s Administrative Secretary position in
Field Services from full-time to part-time;



on September 26, 2012, the City hired another candidate, Melissa Uhl, for
a full-time position as an Administrative Assistant in Public WorksEngineering, for which Scott had applied on July 29, 2012; and



on January 1, 2013, the City reduced Scott’s hours from 35 hours per week
to 29 hours per week, ostensibly because of changes to the definition of
“full-time employee” for health insurance purposes under the Affordable
Care Act.

The parties agree that only the last two incidents occurred after April 7, 2012, which was
300 days before the filing date of Scott’s administrative complaint with the Iowa Civil
Rights Commission (ICRC).
Scott contends that this list is not exhaustive, however, because Eckert and the
City took various other actions that she contends were also retaliatory. Her allegations
of additional retaliatory actions consist of the following:



Eckert took adverse actions against her friends who were City employees;



in 2006, Eckert gave false explanations to another City employee about the
reason for transferring Scott to Field Services;

4



in 2006, Eckert told the City’s Public Works Director to “get rid of” Scott,
when Scott was transferred to Public Works, and the Public Works Director
then told Scott’s immediate supervisor to “get rid of” her;



from 2006 forward, City employees called Scott “The Black Widow”;



in 2011, Eckert told his assistant that Scott was “poison to men” and that
he was going to make her resign;



from an unspecified date “to the present,” City employees circulated
rumors about Scott; and



from 2006 through 2012, the City denied Scott the opportunity to get a
better job, because Scott would have felt like a “sitting duck” for Eckert to
get rid of her, if she had left her job at Field Services.

Plaintiff’s Response To Defendants’ Statement Of Undisputed Material Facts (docket no.
59-2), ¶ 7.

B.

Procedural Background

On July 19, 2013, Scott filed her Complaint (docket no. 1) in this court, asserting
claims, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
as amended, and the Iowa Civil Rights Act (ICRA), IOWA CODE CH. 216, that the City
and Eckert retaliated against her, over a period of almost nine years, for her 2004
complaint that Eckert sexually harassed her between 2000 and 2004. The City filed the
Motion For Summary Judgment (docket no. 46), now before me, on Scott’s retaliation
claims, on September 5, 2014. Eckert filed his Joinder (docket no. 50) in the City’s
Motion For Summary Judgment on September 8, 2014. Scott filed her Resistance (docket
no. 59) on October 22, 2014. The City filed its Reply (docket no. 62) in further support
of its Motion For Summary Judgment on November 3, 2014, and Eckert filed his Joinder
(docket no. 65) in the City’s Reply that same day.
5

On September 5, 2014, the City also filed its separate Motion To Exclude And/Or
Limit The Testimony Of Plaintiff’s Expert Witnesses (Motion To Exclude Testimony Of
Experts) (docket no. 48), seeking to exclude all or parts of the testimony from two of
Scott’s experts. Eckert also filed a Joinder (docket no. 51) in that motion on September
8, 2014, and Scott filed her Resistance (docket no. 55) to it on October 6, 2014. The
City filed a Reply (docket no. 56) in further support of its motion on October 16, 2014.
A jury trial in this matter is currently set to begin on March 30, 2015.
II.

LEGAL ANALYSIS

Resolution of certain issues in the City’s Motion For Summary Judgment1 will
necessarily dictate the resolution of overlapping portions of the City’s Motion To Exclude
Testimony Of Experts. Therefore, I will consider, first, the City’s Motion For Summary
Judgment.

A.
1.

The City’s Motion For Summary
Judgment

Arguments of the parties

In support of its Motion For Summary Judgment, the City argues that Scott has
alleged a series of “discrete” acts, only the last two of which fall within the applicable
statute of limitations period. The City contends, further, that there is no genuine issue
of material fact as to any causal relationship between those two incidents and any
complaints of sexual harassment that Scott made years ago. In the alternative, the City

1

Although Eckert joined in each of the City’s Motions, he did not assert any
separate or additional arguments in support of either one. Therefore, I will simply refer
to the City’s Motions and the City’s arguments.

6

contends that under no circumstances can Scott recover damages for time-barred
incidents, even if she alleges some timely incidents of arguable retaliation. The City also
contends that the defendants are entitled to summary judgment to the extent that Scott’s
claims are based on retaliation for “participation” in an investigation of alleged
harassment, rather than “opposition” to alleged harassment.
Scott denies that the instances of retaliation were merely “discrete” acts. Instead,
she argues that they were part of an ongoing, continuous, or “over-arching” policy and
practice of Eckert and the City to retaliate against her, so that she is entitled to assert
claims and recover damages for acts committed more than 300 days prior to the filing of
her ICRC Complaint in 2012. She also contends that there are genuine issues of material
fact as to the causal connection between her complaints of sexual harassment in 2004 and
retaliatory conduct as late as 2012 and 2013, because of this continuous policy and
practice. She also contends that the last two incidents are actionable, even if others are
not, because she made an additional complaint to the City’s Human Resources Director
about retaliation by Eckert in the summer of 2012, shortly before those incidents. Scott
argues that there is also “direct” evidence of Eckert’s retaliatory intent from his
comments to his administrative assistant that Scott was “poison to men” and that his goal
was to make Scott resign, which she argues tightens the causal connection,
notwithstanding the lapse of time. Indeed, she argues that the record shows that Eckert
used his power to retaliate against her whenever he had the opportunity to do so. Finally,
she contends that she has generated genuine issues of material fact that Eckert did actually
influence the last two adverse employment actions that she has alleged and that she was
better qualified than the person selected to fill the full-time position as an Administrative
Assistant in Public Works-Engineering.
In reply, the City contends that labeling a series of time-barred acts as a “practice”
does not convert them from “discrete” acts into a “continuing violation.” The City also
7

contends that the evidence to which Scott points is not “direct” evidence, primarily
because Eckert did not have direct control over the final employment decisions that Scott
contends were retaliatory. The City also argues that, despite Scott’s contentions that she
was the better candidate for the full-time position as an Administrative Assistant in Public
Works-Engineering, no reasonable jury could find that the City’s reasons for choosing
another candidate were merely a pretext.
2.

Standards for summary judgment

Summary judgment is only appropriate when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if any, show that there
is no genuine issue of material fact and that the moving party is entitled to a judgment as
a matter of law.” FED. R. CIV. P. 56(c) (emphasis added); see Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (“Summary judgment is appropriate if viewing
the record in the light most favorable to the nonmoving party, there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter of law.”); see
generally Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, “[t]he movant
‘bears the initial responsibility of informing the district court of the basis for its motion,’
and must identify ‘those portions of [the record] . . . which it believes demonstrate the
absence of a genuine issue of material fact.’” Torgerson v. City of Rochester, 643 F.3d
1031, 1042 (8th Cir. 2011) (en banc) (quoting Celotex, 477 U.S. at 323). In response,
“[t]he nonmovant ‘must do more than simply show that there is some metaphysical doubt
as to the material facts,’ and must come forward with ‘specific facts showing that there
is a genuine issue for trial.’” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986)).
When the parties have met their burden, the district judge’s task is as follows:
“On a motion for summary judgment, ‘facts must be viewed
in the light most favorable to the nonmoving party only if
there is a genuine dispute as to those facts.’” Ricci v.
8

DeStefano, –––U.S. ––––, 129 S. Ct. 2658, 2677, 174 L. Ed.
2d 490 (2009) quoting Scott v. Harris, 550 U.S. 372, 380,
127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (internal
quotations omitted).
“Credibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge.” Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000),
quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,
106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). . . . . “‘Where
the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine issue
for trial.’” Ricci, 129 S. Ct. at 2677, quoting Matsushita,
475 U.S. at 587, 106 S. Ct. 1348.
Torgerson, 643 F.3d at 1042-43.
“Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ryan v. Capital Contractors, Inc., 679
F.3d 772, 776 (8th Cir. 2012). However, summary judgment is particularly appropriate
when only questions of law are involved, rather than factual issues that may or may not
be subject to genuine dispute. See, e.g., Cremona v. R.S. Bacon Veneer Co., 433 F.3d
617, 620 (8th Cir. 2006).
I will apply these standards here.
3.

Analysis
a.

Elements of a retaliation claim

As the Eighth Circuit Court of Appeals has explained,
To establish a retaliation claim under Title VII, an
employee must show: (1) she engaged in protected conduct;
(2) a reasonable employee would have found the retaliatory
action materially adverse; and (3) the materially adverse
9

action was causally linked to the protected conduct. Pye v. Nu
Aire, Inc., 641 F.3d 1011, 1021 (8th Cir.2011).
Musoff v. J.C. Penny Co., Inc., ___ F.3d ___, ___, 2014 WL 6845105, *3 (8th Cir.
Dec. 5, 2014). As to the third element, “a retaliatory action is materially adverse if it
would likely dissuade a reasonable worker from engaging in protected conduct.” ChavezLavagnino v. Motivation Educ. Training, Inc., 767 F.3d 744, 749 (8th Cir. 2014) (citing
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68-69 (2006)).
b.

The continuing violation claim

A timely charge with the appropriate administrative agency is also mandatory
before a plaintiff can pursue a Title VII or ICRA retaliation claim. See National R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 109-110 (2002); 42 U.S.C. § 2000e-5; IOWA
CODE § 216.15(13). Thus, a plaintiff must ordinarily file an administrative charge within
a certain number of days—in this case, 300 days—of the alleged unlawful employment
practice to pursue a claim in court. 42 U.S.C. § 2000e-5; IOWA CODE § 216.15(13).
Under the “continuing violation” doctrine, however, certain kinds of claims are not timebarred, “so long as all acts which constitute the claim are part of the same unlawful
employment practice and at least one act falls within the time period.” Morgan, 536
U.S. at 122.
i.

The Morgan standard

Under the governing law, then, a key question here is whether the allegedly
retaliatory actions on which Scott principally relies were a “series of separate but related
acts” forming part of the same unlawful employment practice, amounting to a “continuing
violation,” or “discrete acts” within the meaning of Morgan. See 536 U.S. at 115-117.
Scott cannot assert a “continuing violation” based on past isolated instances of retaliation,
even where the effects continue into the limitations period. See Delaware State Coll. v.

10

Ricks, 449 U.S. 250, 258 (1980); Chaffin v. Rheem Mfg. Co., 904 F.2d 1269, 1271–72
(8th Cir. 1990).
As the Eighth Circuit Court of Appeals has explained,
The object of the exhaustion requirement [in 42 U.S.C.
§ 2000e-5(e)(a), requiring the filing of an administrative
charge within a specified period of the unlawful employment
practice] is “the alleged unlawful employment practice.” The
Supreme Court in Morgan explained that the term “practice”
in this phrase does not connote “an ongoing violation that can
endure or recur over a period of time.” 536 U.S. at 110–11,
122 S.Ct. 2061. Rather, other subsections of Title VII define
the sorts of actions that qualify as “unlawful employment
practices,” and include among such practices “numerous
discrete acts.” Id. at 111, 122 S.Ct. 2061.
Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851 (8th Cir. 2012). In Morgan, the
Supreme Court identified “discrete acts” as including “termination, failure to promote,
denial of transfer, or refusal to hire,” and explained that each such “incident of
discrimination and each retaliatory adverse employment decision constitutes a separate
actionable ‘unlawful employment practice.’”

Morgan, 536 U.S. at 114; see also

Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 638 (2007) (reading
Morgan as defining a “discrete act” as “an act that in itself ‘constitutes a separate
actionable “unlawful employment practice”’ and that is temporally distinct” (quoting
Morgan, 536 U.S. at 114) and as “distinguish[ing] between ‘discrete acts’ of
discrimination and a hostile work environment,” where the latter “typically comprises a
succession of harassing acts, each of which ‘may not be actionable on its own’” (quoting
Morgan, 536 U.S. at 115-16)), abrogated on other grounds by U.S. Pub. L. No. 111-2
(Jan. 29, 2009).
As the Eighth Circuit Court of Appeals has also explained, in Morgan,

11

The Court reasoned that the term “practice” does not convert
“related discrete acts into a single unlawful practice for the
purposes of timely filing.” [Morgan, 536 U.S. at 111]. “Each
incident of discrimination and each retaliatory adverse
employment decision constitutes a separate actionable
‘unlawful employment practice.’” Id. at 114, 122 S.Ct. 2061.
Richter, 686 F.3d at 851.
Thus, the consequences of Morgan are the following:
The Tenth Circuit explained that Morgan . . . “abrogates the
continuing violation doctrine as previously applied to claims
of discriminatory or retaliatory actions by employers, and
replaces it with the teaching that each discrete incident of such
treatment constitutes its own ‘unlawful employment practice’
for which administrative remedies must be exhausted.”
Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir.2003).
Richter, 686 F.3d at 851 (emphasis added).
Specifically, the court in Richter held that, in the case before it, because each
“discrete act” is a different unlawful employment practice for which a separate charge is
required, and the plaintiff had alleged as the basis for her retaliation claim a “discrete
act” that occurred after she filed her administrative complaint of discrimination, she had
failed to exhaust her retaliation claim, and the district court had correctly dismissed that
claim on that basis. Id.; see also id. at 851-53 (also rejecting that plaintiff’s contention
that she was not required to exhaust her retaliation claim, because it was based on conduct
that was “like or reasonably related to” a timely claim in her administrative charge).
Similarly, in Betz v. Chertoff, 578 F.3d 929 (8th Cir. 2009), the court rejected a
“continuing violation” retaliation claim, because the incidents of alleged retaliation had
occurred before the expiration of the limitations period and they were “discrete acts,” so
that they were no longer actionable. 578 F.3d at 937 (also noting that the claim was not
a “hostile work environment claim” to which the Court in Morgan had applied the
12

“continuing violation” doctrine). The court explained, “Under the Court’s holding in
Morgan, ‘discrete discriminatory acts are not actionable if time barred, even when they
are related to acts alleged in timely filed charges.’” Id. at 938 (quoting Morgan, 536
U.S. at 113)).2
ii.

Application of the Morgan standard

Here, of the ten incidents on which Scott principally relies to establish her
retaliation claim, six simply are not “materially adverse” and, thus, are not “actionable.”
Musoff, ___ F.3d at ___, 2014 WL 6845105 at *3. No reasonable juror could conclude
that removing Scott from the City Council’s Agenda Review Committee; removing Scott
from her position as Leader Assistant to the Executive Leader of the Emergency
Operations Committee at Fire Station #3; spreading rumors of a sexual nature about Scott
and another City employee, Aaron Kraft; transferring Scott to a position out of City Hall,
in the Public Works-Field Services Headquarters (Field Services); appointing a new City
Clerk without giving Scott the opportunity to apply for the position; and/or requiring
Scott to give up her private office and share a work station with two part-time Clerical
Assistants was “likely to dissuade a reasonable worker from engaging in protected
conduct.” See Chavez-Lavagnino, 767 F.3d at 749.3 Thus, these incidents or actions

2

Scott concedes that, in Farmland Foods v. Dubuque Human Rights Comm’n, 672
N.W.2d 733 (Iowa 2003), the Iowa Supreme Court elected to follow Morgan, so that it
appears that the federal and state analyses of “continuing violations” and “discrete acts”
are the same.
3

There is also no allegation that any of these allegedly retaliatory actions continued
into the limitations period, that is, after April 7, 2012.

13

simply cannot provide the basis for Scott’s retaliation claim, even if they are not simply
“isolated.”4
In contrast, the remaining four of those ten allegedly retaliatory incidents are
“materially adverse.” A reasonable juror could readily conclude that demoting Scott
from Administrative Assistant to Administrative Secretary; cutting Scott’s Administrative
Secretary position in Field Services from full-time to part-time; hiring another candidate
actionable for a full-time position as an Administrative Assistant in Public WorksEngineering, for which Scott had applied on July 29, 2012; and/or reducing Scott’s hours
from 35 hours per week to 29 hours per week, ostensibly because of changes to the
definition of “full-time employee” for health insurance purposes under the Affordable
Care Act, was “likely to dissuade a reasonable worker from engaging in protected
conduct.” See Chavez-Lavagnino, 767 F.3d at 749. The rub here is that, under Morgan,
each of these acts was a “discrete act.” See 536 U.S. at 114 (defining “discrete acts” as
including “termination, failure to promote, denial of transfer, or refusal to hire”). Thus,
each was actionable at the time that it occurred, and Scott’s failure to assert administrative
charges based on the “discrete acts” that occurred before the statutory time period began
to run—the demotion and the cutting of Scott’s hours—means that her time to do so for
those actions has expired. Richter, 686 F.3d at 851; Betz, 578 F.3d at 937-38. Scott
asserted only the failure to hire her for a full-time position in September 2012 and
reducing her hours for purposes of the Affordable Care Act on January 1, 2013, within
her limitations period.

4

Indeed, Scott’s allegations of these retaliatory actions would not satisfy even the
more liberal standard for pleading “adverse actions” in support of “retaliation” claims
advocated by one commentator. See Joseph A. Seiner, The Trouble With Twombly: A
Proposed Pleading Standard For Employment Discrimination Cases, 2009 U. ILL. L.
REV. 1011, 1041-51.
14

Nor is the situation any different as to the additional allegedly retaliatory incidents
that Scott identifies in resistance to the City’s Motion For Summary Judgment. See
Plaintiff’s Response To Defendants’ Statement Of Undisputed Material Facts (docket no.
59-2), ¶ 7. Again, no reasonable juror could conclude that taking adverse actions against
Scott’s friends who were City employees; giving false explanations to another City
employee about the reason for transferring Scott to Field Services; telling the City’s
Public Works Director to “get rid of” Scott, when Scott was transferred to Public Works,
and the Public Works Director then telling Scott’s immediate supervisor to “get rid of”
her, in the absence of any actions actually to do so; calling Scott “The Black Widow”;
telling an assistant that Scott was “poison to men” and that Eckert was going to make her
resign; circulating rumors about Scott; and/or denying Scott the opportunity to get a better
job, because Scott would have felt like a “sitting duck” for Eckert to get rid of her, if
she had left her job at Field Services was “likely to dissuade a reasonable worker from
engaging in protected conduct.” See Chavez-Lavagnino, 767 F.3d at 749. Indeed, the
last allegation is not an allegation of an “action” by the defendants at all, but simply a
statement of Scott’s perception. Thus, these additional incidents or actions simply cannot
provide the basis for Scott’s retaliation claim, even if they are not simply “isolated.”
iii.

Scott’s authorities

The authorities cited by Scott also are not to the contrary. Scott cites Mems v.
City of St. Paul, Dep't of Fire & Safety Servs., 327 F.3d 771 (8th Cir. 2003), in support
of her assertion that her claim is a “continuing violation.” The decision of the Eighth
Circuit Court of Appeals in Mems is unavailing, however. In that case, the court
explained, generally,
The question for liability as well as damages after Morgan is
whether the acts complained of are part of the same unlawful
employment practice. If so, then all of the acts may be
considered so long as one of the acts falls within the
15

limitations period. If not, then only the acts which fall in the
limitations period may be considered.
Mems, 327 F.3d at 784. The court in Mems added, however, that Morgan distinguished
between “discrimination and retaliation claims,” which are based on “discrete acts,” and
harassment claims, which may involve a “continuing violation”:
The Supreme Court explained [in Morgan] the
difference between discrete discriminatory acts and a series
of separate acts that together constitute an “unlawful
employment practice,” 42 U.S.C. § 2000e–5(e)(1). Id. at
2069–76. A discrete act “‘occurred’ on the day that it
‘happened’” and constitutes its own unlawful employment
practice. Id. at 2070. Examples of discrete acts include
“termination, failure to promote, denial of transfer, or refusal
to hire.” Id. at 2073. “Discrete acts that fall within the
statutory time period do not make timely acts that fall outside
the time period.” Id. at 2071.
On the other hand, the Supreme Court opined that a
hostile work environment claim typically involves a series of
separate acts, which together constitute the unlawful
employment practice. Id. at 2074. Because these acts are part
of the same claim, the Court held that an employer may be
liable for all of the acts, and in order for the claim to be
timely, only one act in the series must have occurred within
the limitations period. Id.
The Court explained that first “[a] court's task is to
determine whether the acts about which an employee
complains are part of the same actionable hostile work
environment practice,” and second the court must determine
whether any act that is part of the same claim falls within the
statutory time period. Id. at 2076.
Mems, 327 F.3d at 784-85 (emphasis added).

16

Thus, the court in Mems did not read Morgan to apply the “discrete acts” vs.
“continuing violation” analysis to a plaintiff’s discrimination (or retaliation) claim, but
only to apply that analysis to a plaintiff’s hostile environment claim. Indeed, the court
in Mems actually applied this analysis only to the hostile environment claim of the plaintiff
before it, not to his discrimination claim. See id. at 785-86. On the other hand, in Mems,
the court identified certain acts allegedly part of the hostile environment that were within
the limitations period as discrete acts that were separately actionable as discrimination,
but held that “th[o]se discrete acts, under Morgan, cannot be used to revive prelimitations acts for the purposes of recovering damages because they are separate and
distinct unlawful employment practices.” Id.; accord Richter, 686 F.3d at 851 (discrete
acts are actionable only if an administrative charge concerning them is brought before the
limitations period expires); Betz, 578 F.3d at 937-38 (same). Thus, Mems does not
support Scott’s contention that a “continuing violations” analysis is applicable to her
retaliation claim, where the actionable incidents of retaliation on which Scott relies are
“discrete acts.”
Also unavailing is Scott’s reliance on Fitzgerald v. Henderson, 251 F.3d 345, 359
(2d Cir. 2001), cert. denied sub nom. Potter v. Fitzgerald, 536 U.S. 922 (2002), and
Austion v. City of Clarksville, 244 F.App'x 639, 647 (6th Cir. 2007). In Fitzgerald, the
Second Circuit Court of Appeals did recognize that a claim based on a “continuous
practice and policy of discrimination” may be timely, under the continuing violation
theory, if the last act pursuant to that practice or policy was timely, see 251 F.3d at 359,
and appeared to apply that policy to a “retaliation” claim, see id. at 361. The problem

17

with Scott’s reliance on Fitzgerald is that Fitzgerald is a pre-Morgan decision.5
Furthermore, Fitzgerald is contrary to the conclusions of the Eighth Circuit Court of
Appeals in Richter and Betz that, after Morgan, because each “discrete act” is a different
unlawful employment practice for which a separate charge is required, where, as here,
the plaintiff has alleged “discrete acts” outside of the limitations period as the basis for
her retaliation claim, she has failed to exhaust that part of her retaliation claim, and that
part of the claim is correctly dismissed on that basis.

Richter, 686 F.3d at 851; Betz,

578 F.3d at 937-38.
Scott’s reliance on the unpublished opinion of the Sixth Circuit Court of Appeals
in Austion is also unavailing, because the court held in that case that the plaintiff had filed
his administrative charge within a month of the alleged retaliation, so that the allegedly
retaliatory act occurred within the limitations period. 244 F.App'x at 649.

Also,

although the court did recognize that “a continuing over-arching policy of discrimination”
may make a discrimination claim timely under the “continuing violation” doctrine, it
explained,
To establish a longstanding and demonstrable policy of
discrimination, a plaintiff “must demonstrate something more
than the existence of discriminatory treatment in his case.”
Haithcock v. Frank, 958 F.2d 671, 679 (6th Cir.1992). A
plaintiff must establish that the employer's “standing
operating procedure” included intentional discrimination
against the class of which plaintiff was a member. Sharpe,
319 F.3d at 269 (quoting EEOC v. Penton Indus. Publ'g Co.,
851 F.2d 835, 838 (6th Cir.1988)). “Unrelated incidents of
discrimination will not suffice to invoke this exception; rather
there must be a continuing over-arching policy of
5

The Supreme Court denied the petition for writ of certiorari in Fitzgerald on
June 17, 2002, just a week after Morgan was decided, on June 10, 2002.

18

discrimination.” LRL Properties v. Portage Metro Hous.
Auth., 55 F.3d 1097, 1106 (6th Cir.1995). Generally this
exception is strictly construed and is satisfied only where the
defendant has a known policy or rule supporting
discrimination. . . . After thoroughly reviewing the statistical
and documentary evidence submitted to the district court, we
find that the evidence fails to demonstrate that Clarksville
maintained a “standard operating procedure” of
discriminating against African–Americans. Accordingly, the
district court erred in applying the continuing-violations
theory, and we hold that Austion's 1998 demotion claim was
not timely filed under Title VII.
Austion, 244 F.App’x at 647-48 (emphasis added). The plaintiff’s showing in Austion
was inadequate, and Scott’s is far less compelling, because she has pointed to nothing in
this record as demonstrating that the City (or Eckert) maintained a “standard operating
procedure” of retaliating against women who complained about alleged sexual harassment
by Eckert, the class of which she was purportedly a member, rather than her own
individual claim of such retaliation. Id.; see also Torgerson, 643 F.3d at 1042 (explaining
that “[t]he nonmovant ‘must do more than simply show that there is some metaphysical
doubt as to the material facts,’ and must come forward with ‘specific facts showing that
there is a genuine issue for trial.’” (quoting Matsushita Elec. Indus. Co., 475 U.S. at
586–87 (1986))).
The City is entitled to summary judgment on Scott’s “retaliation” claims to the
extent that they are based on untimely incidents, because the “continuing violation”
theory is not applicable to Scott’s claims.
c.

A “hostile retaliatory environment” claim

In Morgan, “[t]he Supreme Court held that the continuing violation doctrine
applies in hostile work environment claims, where, although one incident may not support
a claim, the claim may be supported by a series of incidents that occur over a period of
19

time.” Betz, 578 F.3d at 937-38 (citing Morgan, 536 U.S. at 122)). Circuit Courts of
Appeals to consider the question—which do not include the Eighth Circuit Court of
Appeals—have also recognized, however, a cause of action for “retaliatory harassment”
or “retaliatory hostile work environment.” See, e.g., Gowski v. Peake, 682 F.3d 1299,
1312 (11th Cir. 2012) (per curiam); Wiley v. Glassman, 511 F.3d 151 (D.C. Cir. 2007)
(per curiam); Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 595 (6th Cir.
2007) (citing Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000));
Jensen v. Potter, 435 F.3d 444 (3d Cir. 2006); Noviello v. City of Boston, 398 F.3d 76,
91 (1st Cir. 2005); Stutler v. Ill. Dep't of Corrs., 263 F.3d 698, 703 (7th Cir. 2001);
Ray v. Henderson, 217 F.3d 1234, 1245–46 (9th Cir. 2000); Richardson v. New York
State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999); Gunnell v. Utah Valley
State Coll., 152 F.3d 1253, 1265 (10th Cir. 1998); Ross v. Communications Satellite
Corp., 759 F.2d 355, 366 (4th Cir. 1985); see also Maria Danaher, Federal Court
Circuits Recognize Cause Of Action For “Retaliatory Hostile Work Environment,” 14
NO. 16 LAWYERS J. 8 (Aug. 10, 2012); Bryan v. Chertoff, 217 F.App’x 289, 294 (5th
Cir. 2007) (declining to consider whether to recognize such a claim); but see Scusa v.
Nestle USA Co., Inc., 181 F.3d 958, 969 (8th Cir. 1999) (appearing to cast doubt on the
viability of such a claim). As the Eleventh Circuit Court of Appeals has explained, a
plaintiff asserting such a claim must prove that “the workplace [wa]s permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive
to alter the conditions of the [plaintiff’s] employment or create an abusive working
environment.” Gowski, 682 F.3d at 1311; but see Joel A. Kravetz, Deterrence v.
Material Harm: Finding The Appropriate Standard To Define An “Adverse Action” In
Retaliation Claims Brought Under The Applicable Equal Employment Opportunity
Statutes, 4 U. PA. J. LAB. & EMP. L. 315 (Winter 2012) (advocating, instead of a “severe
or pervasive” standard, a standard for retaliation claims based on whether the allegedly
20

retaliatory conduct would reasonably deter a charging party or others from engaging in
protected activity). This seems to be the primary method to plead around the “discrete
discriminatory acts” doctrine created by Morgan for a series of allegedly retaliatory
actions for which no independent charges of discrimination were timely filed.
I need not consider the viability of such a claim in this case, however, because
Scott not only did not expressly plead such a claim, nor did she assert it in her resistance
to summary judgment, she expressly pleaded away from such a claim—possibly for
strategic reasons. Scott pleaded her Title VII claim on the basis that the defendants
“retaliated against the Plaintiff through adverse employment actions, up to and including,
denial of full-time employment, demotion, salary freeze, reduced hours from full-time to
part-time, reduced part-time hours, and loss of benefits including health insurance
benefits, sick/vacation/personal leave usage, life insurance options, and deferred
comp[ensation] contributions.” Complaint, Count I. Thus, Scott based her retaliation
claim on “discrete acts,” each individually actionable, not on a series of incidents that
collectively amounted to retaliatory harassment, even though any one incident may not
have supported a claim. Betz, 578 F.3d at 937-38 (citing Morgan, 536 U.S. at 122).
Scott’s law firm is a highly skilled trial firm with years of experience in
employment discrimination litigation. Had her attorneys sought to plead a “retaliatory
hostile work environment” claim in the Complaint, they clearly could have done so.
Moreover, both defense law firms have superb reputations for their longstanding,
extensive employment discrimination defense practices statewide. Had they even had a
whiff or hint of a notion that Scott was seeking to bring a “retaliatory hostile work
environment claim,” they would have vigorously attacked it in their summary judgment
motions and extensive briefing. Finally, if Scott’s attorneys believed such a claim was
in her Complaint, they could have used this claim to try to rebut the City’s Summary

21

Judgment Motion.

For reasons known only to Scott’s counsel, they did not.

A

“retaliatory hostile work environment” claim simply is not in this case.
At this late juncture, it is also too late for Scott to seek leave to amend to assert
such a claim, well after the deadline to amend pleadings, as such a claim would likely
require the reopening of discovery and possible delay of the March 30, 2015, trial date.
See, e.g., Catipovic v. Turley, No. C 11-3074-MWB, 2014 WL 5454570, *6-*7 (N.D.
Iowa Oct. 25, 2014) (slip op.) (explaining that leave to amend after the deadline is subject
to a Rule 16(b) “good cause” requirement, considering, inter alia, the “diligence” of the
party seeking leave for the belated amendment and the “prejudice” to the opposing party).
Reopening discovery, a new round of summary judgment motions, and a delay of the
trial would each, individually, prejudice the defendants, and all three would cause
extraordinary prejudice.
d.

Timely incident claims

The conclusions above leave Scott’s federal and state “retaliation” claims
dependent upon her ability to generate genuine issues of material fact that two incidents
in 2011 and at the end of 2012, which were within 300 days of the filing of her
administrative charge, were causally related to her 2004 complaint about Eckert’s sexual
harassment. See University of Texas Sw. Med. Ctr. v. Nassar, ___ U.S. ___, ___, 133
S.Ct. 2517, 2534 (2013) (“The text, structure, and history of Title VII demonstrate that
a plaintiff making a retaliation claim under § 2000–3(a) must establish that his or her
protected activity was a but-for cause of the alleged adverse action by the employer.”).
Those timely incidents are the following: (1) the City hiring another candidate, Melissa
Uhl, on September 26, 2012, for a full-time position as an Administrative Assistant in
Public Works-Engineering, for which Scott had applied on July 29, 2012; and (2) the
City reducing Scott’s hours from 35 hours per week to 29 hours per week, ostensibly

22

because of changes to the definition of “full-time employee” for health insurance purposes
under the Affordable Care Act, on January 1, 2013.
As to the second of these timely incidents, Scott has failed to generate any genuine
issue of material fact that the cut in her hours because of changes to the definition of
“full-time employee” for insurance purposes was a pretext for retaliation. Torgerson,
643 F.3d at 1042 (explaining that “[t]he nonmovant ‘must do more than simply show that
there is some metaphysical doubt as to the material facts,’ and must come forward with
‘specific facts showing that there is a genuine issue for trial.’” (quoting Matsushita Elec.
Indus. Co., 475 U.S. at 586–87 (1986))). Although she contends that Eckert had the
power to exempt her from the cut in hours, she has not identified a single one of the
almost three dozen part-time employees who were working over 30 hours a week who
was exempted from the hours adjustment under the new definition of “full-time
employee” for insurance purposes.

Thus, there is no reasonable inference from the

present record that the reduction in her hours for “insurance purposes,” or the failure to
exempt her from that reduction, was retaliatory, and the defendants are entitled to
summary judgment on Scott’s retaliation claims to the extent that they rely on this
incident.
The situation is different, however, as to the first of the timely incidents of alleged
retaliation, the City hiring another candidate, Melissa Uhl, on September 26, 2012, for
a full-time position as an Administrative Assistant in Public Works-Engineering, for
which Scott had applied on July 29, 2012. Notwithstanding the City’s evidence that
Eckert was not directly involved in the decision-making process for that employment
decision, Scott has pointed to specific evidence giving rise to reasonable inferences that
Eckert was involved. That evidence includes, among other things, evidence that the
decision-makers, an interview committee, were all well aware of friction between Eckert
and Scott; evidence that the chairperson of the interview committee went so far as to ask
23

Eckert if Eckert would oppose interviewing Scott for the position and whether Eckert
would oppose Scott’s return to a position in City Hall; evidence that the chairperson of
the committee believed that Eckert could “veto” the committee’s choice; and evidence
that Eckert exercised complete de facto control over hiring and firing decisions in City
departments, even where he technically did not have such authority.
I conclude, further, that this evidence and other evidence is sufficient to generate
genuine issues of material fact on retaliation, despite the long period of time between the
protected activity in 2004 and the allegedly retaliatory conduct in 2012, although such a
long time period might ordinarily break any causal connection. This is so, because this
and other evidence suggests that Eckert’s allegedly retaliatory animus was still very much
alive in 2012. Indeed, as the Eighth Circuit Court of Appeals has pointed out, under
Morgan, untimely discriminatory acts may constitute relevant “background evidence in
support of a timely claim.” Saulsberry v. St. Mary's Univ. of Minnesota, 318 F.3d 862,
866 (8th Cir. 2003) (citing Morgan, 536 U.S. at 113). Although the untimely actions
that Scott argued were part of a continuing violation are not actionable, they are evidence
that helps to bridge the causation “gap” between a complaint of sexual harassment in
2004 and an allegedly retaliatory action in 2012.
4.

Summary

Thus, the City’s Motion For Summary Judgment is granted as to Scott’s retaliation
claims to the extent that those claims seek relief for allegedly retaliatory incidents before
April 7, 2012. The City’s Motion For Summary Judgment is also granted as to Scott’s
relation claims to the extent that those claims seek relief for the City reducing Scott’s
hours from 35 hours per week to 29 hours per week, ostensibly because of changes to
the definition of “full-time employee” for health insurance purposes under the Affordable
Care Act, on January 1, 2013. The City’s Motion For Summary Judgment is denied,
however, to the extent that Scott seeks relief for the denial of the full-time position of
24

Administrative Assistant in Public Works-Engineering in 2012 in retaliation for
complaints of sexual harassment by Eckert during a 2004 investigation of such allegations
against Eckert.

B.

The City’s Motion To Exclude
Testimony Of Experts

In its Motion To Exclude Testimony Of Experts, the City challenges the
admissibility of certain opinions of two of Scott’s expert witnesses in this case, Dr. Ralph
Brown and Dr. Louise Fitzgerald. Some additional factual background about these
experts’ opinions is relevant to the analysis of the City’s challenge.
1. Additional factual background
The City contends, and Scott does not dispute, that Dr. Brown has prepared an
Economic Loss Appraisal with respect to Scott’s purported loss of earnings at issue in
this case. Dr. Brown’s report includes three alternative loss calculations: Alternative 1
calculates loss based on “what if” Scott had not been demoted from Administrative
Assistant to Administrative Secretary in January 2008; Alternative 2 calculates loss based
on “what if” Scott had been promoted to the City Clerk position in July 2006; and
Alternative 3 calculates loss based on “what if” Scott had been hired as the Administrative
Assistant in Public Works in September 2012. The City also contends, and Scott also
does not dispute, that in each of the three alternative loss calculations, Dr. Brown
included a calculation for front pay for each year from 2015 through 2039.
The City contends, and Scott does not dispute, that Dr. Louise Fitzgerald intends
to offer opinions at trial regarding the causes and consequences of sexual harassment in
the workplace. The City asserts that Dr. Fitzgerald’s report analyzes (1) whether Scott’s
behavior was consistent with a sexual harassment victim, and (2) whether the City’s
sexual harassment policy and remediation program are adequate.
25

Somewhat more

specifically, the City asserts that Dr. Fitzgerald opines as follows: (1) that Scott’s
behavior is consistent with that of sexual harassment victims and that it was “reasonable”
“[f]rom a psychological perspective,” and (2) that the City’s anti-harassment policy,
procedures, and investigations are deficient for various reasons.
2.

Arguments of the parties

In its Motion To Exclude Testimony of Experts, the City seeks exclusion of
Dr. Brown’s opinions about damages “scenarios” that include damages for time-barred
conduct, that is, Dr. Brown’s Alternatives 1 and 2, where Scott cannot obtain relief for
such time-barred conduct, and damages for future lost wages and benefits, where front
pay is not an issue for the jury. The City also seeks exclusion of Dr. Fitzgerald’s opinions
about the typical reactions and responses of harassment victims and the organizational
practices that facilitate and inhibit harassment, on the ground that such opinions are
simply irrelevant, where Scott asserts only retaliation claims, not harassment claims.
Much of Scott’s resistance to exclusion of Dr. Brown’s testimony on damages
“scenarios” that include damages for time-barred conduct is based on a reiteration of her
contention that her retaliation claim is based on a “continuing violation,” which I rejected,
above. As to the City’s remaining contentions concerning Dr. Brown, Scott concedes
that Dr. Brown’s front-pay opinions should not be submitted to the jury, because, if she
obtains a favorable verdict, the question of front pay is for the court.
In contrast, Scott argues that all of Dr. Fitzgerald’s challenged opinions are
relevant, even if she can only recover for the retaliatory failure to hire her for the fulltime Administrative Assistant position in 2012, because those opinions will help her
satisfy the element of her retaliation claim requiring her to prove that she had a good
faith, reasonable belief that she had been subjected to sexual harassment when she
complained about it. She contends that she must prove this element, because the City
has directly challenged all of her allegations that she reasonably believed she was the
26

victim of sexual harassment. Scott also argues that Dr. Fitzgerald’s opinions about how
Scott’s reaction to harassment was consistent with what is to be expected of harassment
victims continue to be relevant, and do not merely vouch for Scott’s credibility. She
contends that this is so, because prior, albeit untimely, acts of retaliation are relevant
“background” information, even if her claim is limited to the denial of the full-time
position in 2012. Furthermore, she contends that Dr. Fitzgerald’s opinions are relevant
in light of her complaints about the City’s lack of any response to her renewed complaint
of retaliation in 2013.
In reply, the City contends that, as to Dr. Fitzgerald’s opinions, it has never denied
that Scott had a good-faith, reasonable belief that Eckert sexually harassed her, even
while denying that Eckert did, in fact, sexually harass Scott and denying that Scott
actually reported any such belief to City officials in 2004. Indeed, the City contends that
the reasonableness of Scott’s belief that she was sexually harassed should not even be
submitted to the jury. The City also contends that, even if Scott has some retaliation
claim based on circumstances after she purportedly complained again about retaliatory
conduct in 2013, Dr. Fitzgerald’s opinions are not admissible, because failure to
investigate a new claim of retaliation is not, itself, the basis for an actionable retaliation
claim.
3.

Analysis
a.

Applicable standards

As the Supreme Court has explained, Rule 702 of the Federal Rules of Evidence
governs the admission of expert testimony and requires the district court to serve as a
gatekeeper to “ensure that any and all scientific testimony or evidence admitted is not
only relevant, but reliable.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589
(1993). More specifically, Rule 702 of the Federal Rules of Evidence provides as
follows:
27

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and methods
to the facts of the case.
FED. R. EVID. 702 (emphasis added).
The Eighth Circuit Court of Appeals has stated that the standard for what expert
testimony is relevant and helpful under Rule 702 is “low,” that is, that the expert’s
evidence should be admitted if it has any tendency to make a fact of consequence more
or less probable. United States v. Holmes, 751 F.3d 846, 851 (8th Cir. 2014) (citing
FED. R. EVID. 401). Nevertheless, the court has reiterated that “‘[w]here the subject
matter is within the knowledge or experience of lay people, expert testimony is
superfluous.’” United States v. Coutentos, 651 F.3d 809, 821 (8th Cir. 20110 (quoting
Ellis v. Miller Oil Purchasing Co., 738 F.2d 269, 270 (8th Cir. 1984) (per curiam)). In
short, to satisfy the relevance requirement of Rule 702 and Daubert, “‘the proponent
must show that the expert’s reasoning or methodology was applied properly to the facts
at issue.’” Smith v. Bubak, 643 F.3d 1137, 1138 (8th Cir. 2011) (emphasis added)
(quoting Barrett v. Rhodia, Inc., 606 F.3d 975, 980 (8th Cir. 2010)). Thus, for example,
expert testimony is relevant where such testimony is required to establish an element of
a claim. See, e.g., Barrett, 606 F.3d at 981 (concluding that a plaintiff in a toxic tort
strict liability case is required to establish causation through expert testimony). Finally,
28

the court has also observed that expert evidence, even if relevant, is subject to exclusion
if its potential for prejudice substantially outweighs its probative value. Holmes, 751
F.3d at 851; see also FED. R. EVID. 403 (relevant evidence may be excluded if its
probative value is substantially outweighed by its potential for prejudice); Coutentos, 651
F.3d at 821 (considering whether the district court had properly excluded expert evidence
under Rule 403, after affirming exclusion of the expert’s evidence as irrelevant under
Rule 702).
b.

Application of the standards
i.

Dr. Brown’s opinions

I concluded, above, that Scott cannot recover for retaliation based on any allegedly
retaliatory conduct that occurred before April 7, 2012. I also concluded that Scott’s
demotion from Administrative Assistant to Administrative Secretary in January 2008 and
her lack of a promotion to the City Clerk position in July 2006, the bases for Dr. Brown’s
Alternatives 1 and 2, were “discrete acts” for which her time to assert a claim had expired
long before Scott filed her administrative charge of retaliation. Thus, Dr. Brown’s
damages “scenarios” set out in his Alternatives 1 and 2 simply are not relevant to any
element of Scott’s remaining retaliation claim. See Smith, 643 F.3d at 1138 (explaining
that, to satisfy the relevance requirement of Rule 702 and Daubert, “‘the proponent must
show that the expert’s reasoning or methodology was applied properly to the facts at
issue’” (quoting Barrett, 606 F.3d at 980)); and compare Barrett, 606 F.3d at 981
(concluding that a plaintiff in a toxic tort strict liability case is required to establish
causation through expert testimony). Furthermore, Scott concedes that Dr. Brown’s front
pay calculations are not relevant to any jury question, so that they may not be offered in
proceedings before the jury, because front pay is a matter for the court to determine, if
Scott prevails on her claim. Salitros v. Chrysler Corp., 306 F.3d 562, 571 (8th Cir.
2002) (“Front pay is decided by the court, not the jury.”). Even then, only Dr. Brown’s
29

front pay calculations based on conduct that occurred within the limitations period would
be relevant.
Therefore, the City’s Motion To Exclude Expert Testimony is granted as to the
challenged opinions of Dr. Brown set out in his Alternatives 1 and 2. Dr. Brown may
testify to his damages calculations in Alternative 3, which is based on a timely incident
of alleged retaliation.
ii.

Dr. Fitzgerald’s opinions

The analysis is only a little more complicated as to the City’s request for exclusion
of Dr. Fitzgerald’s testimony in its entirety. First, there is no sexual harassment claim
at issue in this case, only a retaliation claim, so that Dr. Fitzgerald’s opinions (1) that
Scott’s behavior is consistent with that of sexual harassment victims and that it was
“reasonable” “[f]rom a psychological perspective,” and (2) that the City’s antiharassment policy, procedures, and investigations are deficient for various reasons have
no direct relevance to any claim at issue in this case. See Smith, 643 F.3d at 1138
(explaining that, to satisfy the relevance requirement of Rule 702 and Daubert, “‘the
proponent must show that the expert’s reasoning or methodology was applied properly to
the facts at issue’” (quoting Barrett, 606 F.3d at 980)); and compare Barrett, 606 F.3d
at 981 (concluding that a plaintiff in a toxic tort strict liability case is required to establish
causation through expert testimony). Scott is correct that, ordinarily, to prevail on a
retaliation claim, a plaintiff must show, inter alia, that she had good faith, reasonable
belief that underlying challenged conduct violated Title VII. See Brannum v. Missouri
Dep't of Corr., 518 F.3d 542, 547–49 (8th Cir. 2008). Scott is also correct that, under
Morgan, untimely discriminatory acts may constitute relevant “background evidence in
support of a timely claim.” Saulsberry, 318 F.3d at 866 (citing Morgan, 536 U.S. at
113). Neither assertion makes Dr. Fitzgerald’s opinions relevant here, however, where
the City represents that it has not and will not challenge the good faith or reasonableness
30

of Scott’s belief that Eckert sexually harassed her. Under these circumstances, I agree
with the City that whether or not Scott had such a good faith, reasonable belief should
not even be submitted to the jury.6 Finally, even to the extent that untimely incidents of
harassment or retaliation provide “background evidence” in support of a timely claim, I
conclude that the potential for prejudice and confusion of the issues—arising primarily
from misdirection about what conduct of the defendants is properly at issue—substantially
outweighs any probative value of Dr. Fitzgerald’s opinions. See Holmes, 751 F.3d at
851 (observing that expert evidence, even if relevant, is subject to exclusion if its potential
for prejudice substantially outweighs its probative value); see also FED. R. EVID. 403
(relevant evidence may be excluded if its probative value is substantially outweighed by
its potential for prejudice); Coutentos, 651 F.3d at 821 (considering whether the district
court had properly excluded expert evidence under Rule 403, after affirming exclusion
of the expert’s evidence as irrelevant under Rule 702).7
6

Of course, the relevance of Dr. Fitzgerald’s opinions might change, if, at trial,
the City opens the door to evidence concerning whether or not Scott had the required
good faith, reasonable belief that Eckert sexually harassed her.
7

Dr. Louise Fitzgerald is a nationally recognized psychologist with impeccable
credentials in the area of sexual harassment. She has held may distinguished faculty
positions at nationally prominent universities; has received an impressive number of
important national awards from American Psychological Association; has received
numerous grants, including a $1.6 million grant from the National Institutes of Mental
Health to study various aspect of the harm caused by sexual harassment; and has authored
a plethora of book chapters, co-authored two books, and dozens of journal articles related
to the subject matte of her proposed testimony. She has also been invited to present at
the leading universities in the United States, including Harvard, Yale, Michigan,
Stanford, Duke, Northwestern, Ohio State and Carnegie Mellon. It is not her impressive
qualifications that are at issue here, however. Rather, given this summary judgment
ruling, which has narrowed the plaintiff’s claims, Dr. Fitzgerald’s proposed testimony,
while highly relevant had there been a “sexual harassment” claim or a “retaliatory

31

Therefore, the City’s Motion To Exclude Expert Testimony, seeking exclusion of
Dr. Fitzgerald’s testimony in its entirety, is granted.
4.

Summary

The City’s Motion To Exclude Expert Testimony is granted as to all challenged
opinions.
III.

CONCLUSION

Upon the foregoing,
1.

The City’s September 5, 2014, Motion For Summary Judgment (docket no.

46), joined in by defendant Eckert (docket no. 50), is granted in part and denied in
part, as follows:
The Motion is granted as to Scott’s retaliation claims to the extent
that those claims seek relief for allegedly retaliatory incidents before April 7,
2012;
The Motion is also granted as to Scott’s relation claims to the extent
that those claims seek relief for the City reducing Scott’s hours from 35 hours per
week to 29 hours per week, ostensibly because of changes to the definition of
“full-time employee” for health insurance purposes under the Affordable Care
Act, on January 1, 2013; but
harassment” or “retaliatory hostile work environment” claim, is no longer relevant to the
remaining retaliation claim.
Also, had Dr. Fitzgerald performed a clinical examination of Scott and opined on
the effects of the alleged retaliation on her mental state, such as offering opinions that
such retaliation had caused depression, stress, distress, or other mental or emotional
symptoms, her opinions might also have been admissible to support Scott’s prayer for
damages for emotional distress. Dr. Fitzgerald’s Report, filed at docket no. 48-3, does
not indicate that she has any such opinions admissible for purposes of Scott’s prayer for
damages, however.
32

The Motion is denied to the extent that Scott seeks relief for the
denial of the full-time position of Administrative Assistant in Public WorksEngineering in 2012 in retaliation for complaints of sexual harassment by Eckert
during a 2004 investigation of such allegations against Eckert.
2.

The City’s September 5, 2014, Motion To Exclude And/Or Limit The

Testimony Of Plaintiff’s Expert Witnesses (Motion To Exclude Testimony Of Experts)
(docket no. 48), joined in by Eckert (docket no. 51), is granted as to all challenged
opinions.
IT IS SO ORDERED.
DATED this 22nd day of December, 2014.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

33