Murdock v. City of Wichita , Kansas

Filing 119

MEMORANDUM AND ORDER granting 99 Motion for Summary Judgment; denying 101 Motion for Summary Judgment; denying 105 Motion for Summary Judgment. Signed by District Judge Eric F. Melgren on 9/18/2012. (alm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LUCINDA B. MURDOCK,
Plaintiff,

vs.

Case No. 09-CV-02103-EFM

CITY OF WICHITA, KANSAS,
Defendant.

MEMORANDUM AND ORDER
Plaintiff, Lucinda B. Murdock, appears pro se in this case and asserts claims for sexual
harassment, retaliation, and employment discrimination related to her race and sex, all under
Title VII of the Civil Rights Act of 1964.1 Before the Court are Defendant’s motion for
summary judgment and two consecutive motions for summary judgment filed by Plaintiff.
Because both of Plaintiff’s dispositive motions concern a single defendant, contemplate the same
claims, and generally discuss the same factual allegations, the Court will consider both

1

42 U.S.C. § 2000e, et. seq.

submissions as a single cross-motion for summary judgment.2 For the foregoing reasons, the
Court grants Defendant’s motion and denies Plaintiff’s motion.
I.

Factual and Procedural Background3

Plaintiff Lucinda Murdock is an African-American female who has been employed by
Defendant, City of Wichita, since May 2, 2000. Defendant terminated Murdock’s employment
on April 3, 2007, but ultimately reinstated her on October 9, 2008. Plaintiff’s claims arise from
the circumstances surrounding her employment and termination.
During her employment with the City, Plaintiff has worked as a van operator for Wichita
Transit’s paratransit service, which provides safe transportation to disabled individuals. Van
operators have an opportunity to select their routes through a bidding process based on seniority.
Although Plaintiff had multiple opportunities to change her route, she maintained the same route
for several years prior to her termination. City dispatchers use a transit computer program to
assign passengers to certain routes based on geographical and temporal efficiency. Plaintiff
claims that on several occasions, dispatchers made her work more difficult by assigning her route
a disproportionately high number of passengers who were confined to wheelchairs. Plaintiff
does not assert that these passenger assignments were the result of sexual harassment or were
based in any way on her race or sex. She instead alleges that dispatchers made such assignments
simply because they were simply “mad, jealous, upset and just evil.”4

2

The continuity of argumentation found in Plaintiff’s motions is evidenced by the fact she submitted
identical documents to serve as her second motion for summary judgment (Doc. 105) and her response to
Defendant’s dispositive motion (Doc. 108).
3

In accordance with summary judgment procedures, the facts set forth herein are uncontroverted for the
purposes of the present motions before the Court. If controverted, the facts are related in the light most favorable to
the Plaintiff, who opposes Defendant’s motion for summary judgment.
4

Excerpts of Lucinda Murdock Deposition, Vol. III, Def. Ex. 9, at 532.

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At all times relevant to this lawsuit, the City of Wichita (the “City”) had a policy
prohibiting sexual harassment. Plaintiff had reviewed the City’s sexual harassment policy, was
familiar with its terms, and had attended harassment training classes at the City. The policy
distinguishes compliments from sexual harassment, which it defines as “behavior that is not
welcome, that is personally offensive, that lowers morale and that, therefore, interferes with
work effectiveness.”5

The City’s sexual harassment policy also provides that “it is every

employee’s responsibility to report such problems so the City can take appropriate steps to
correct the situation.”6 Complaints of sexual harassment were to be reported immediately to the
department supervisor, the department EEO officer, the department director, or the City’s
Affirmative Action Administrator. In the event that a complaint concerned an employee’s
immediate supervisor, the policy required that the employee report the conduct to a higher level
supervisor or to the City’s Affirmative Action Administrator.
Plaintiff’s sexual harassment claim primarily involves three comments that she attributes
to the former superintendent of transportation, Brad Davis.

Davis’ first alleged comment

occurred during Plaintiff’s application with the City in the spring of 2000, when Davis said that
Murdock was so pretty that he could not believe that she was the sister of another City employee,
Dwight “Hollywood” Williams. Davis’ second comment came on October 31, 2000, when he
made the following remarks concerning Plaintiff’s Halloween costume: “You don’t have to
work. You can walk around here in the garage.”7 Plaintiff asserts that a third incident occurred

5

Policy Prohibiting Sexual Harassment, Def. Ex. 13, at 1.

6

Id.

7

Excerpts of Lucinda Murdock Deposition, Vol. III, Def. Ex. 8, at 355.

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in 2002, when Davis told Murdock, “Damn, you look good.”8 Plaintiff was not offended by any
of Davis’ comments, did not respond, and did not report the comments to any of her supervisors.
In support of her sexual harassment claim, Murdock also alleges that Davis had
previously engaged in consensual relationships with other City employees, a practice not
prohibited by City policy. From this information, Ms. Murdock formed the opinion that Davis
wanted to engage in a sexual relationship with her, although Plaintiff admits that Davis never
mentioned such an arrangement.

Plaintiff alleges that Davis became angry and jealous in

November of 2002, when he learned that she was dating another City employee, Troy Bowens.
While Davis never made any statements concerning persons who Murdock may have been dating
at any given time, Plaintiff contends that jealousy led Davis to engage in retaliatory conduct,
including a personal mission to see that Plaintiff was terminated. In support of this allegation,
Plaintiff states that she was wrongfully disciplined and sent home by Davis when she shouted at
a supervisor, Anna Sparlin, who had issued her a disciplinary designation of “late.”
Plaintiff’s race discrimination claim involves to two comments that she attributes to her
supervisor, Howard Morris. First, on December 31, 2000, Morris asked Murdock, “Do you want
me to slap the hell out of you?”9 Plaintiff does not know what prompted Morris’ statement, and
she does not point to any evidence that the comment was related to her race or sex. Murdock
started to draft a grievance to report the incident, but never submitted it to the City. Second,
Morris used the phrase, “you people,”10 while Morris and Plaintiff had a disagreement over his
assignment of overtime work to employees with less seniority. Plaintiff filed a grievance,
contending that these comments were directed at her race.

The grievance received a full

8

Excerpts of Lucinda Murdock Deposition, Vol. I, Def. Ex. 6, at 31.

9

Excerpts of Lucinda Murdock Deposition, Vol. I, Def. Ex. 10, at 662-63.

10

Def. Ex. 6, at 113-14.

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investigation from Jay Banasiak, who served as the general manager for Wichita Transit. After
meeting with Howard Morris and representatives from Plaintiff’s union, the City determined that
when Morris used the phrase, “you people,” he referred only to van drivers, not to African
Americans. For this reason, Plaintiff’s grievance was denied. It is uncontroverted that none of
Plaintiff’s co-workers or supervisors made any direct comments about Murdock’s race, and that
Murdock never heard racial slurs directed toward her or toward any other African-American
employee.11
Plaintiff’s race and sex discrimination claims also arise from her termination, which
occurred on April 3, 2007. In a letter signed by Jay Banasiak, the City stated that it terminated
Plaintiff’s employment because of an incident that transpired on February 15, 2007, between
Plaintiff and one of her passengers, Mary Rowles. At that time, Mary Rowles was a frail, 94year-old, Caucasian woman who was legally blind and generally relied on a wheelchair. On the
date of the incident, it was a cold day with some snow and ice on the ground. As Plaintiff’s van
approached Rowles’ home, Ms. Rowles asked Plaintiff to pull into her driveway instead of
releasing her on the street.12 When Plaintiff refused to pull into Rowles’ driveway, Rowles
struck Plaintiff on the right shoulder and shouted, “Pull up into the driveway, damn it,”13 then
began to exit the vehicle.
After Rowles struck Plaintiff’s shoulder, Plaintiff called the radio dispatcher and said,
“my client wanted me to pull up into the driveway, and I refused. She became angry. I’m about

11

Plaintiff claims that she had occasionally heard African-American employees at Wichita Transit use the
word “nigger” between one another, but she contends that such use of that term was not racist or offensive.
12

Wichita Transit’s van operators typically make their stops on the street to avoid backing into oncoming
traffic. However, Plaintiff acknowledges that she and other drivers have pulled into passengers’ driveways on
occasion when it was safe to do so.
13

Excerpts of Lucinda Murdock Deposition, Vol. II, Def. Ex. 7, at 178.

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to knock her out.”14 Within seconds, Plaintiff’s supervisor, Howard Morris, got on the radio and
asked her to describe the situation. Plaintiff told Morris “I’m about to knock her out,”15 and
“Y’all need to put her on a new route or put her on a different route or something like that. Put
her on another route or there’s going to be some mess.”16 When Plaintiff twice said, “I’m about
to knock her out,” she contemplated striking Rowles until she became unconscious.17
The City publishes and disseminates an Operator’s Manual, which governs the conduct of
Wichita Transit employees, including van operators. The Operator’s Manual provides that
employees are subject to immediate termination if they engage in conduct that constitutes a Class
I rule violation, including threatening or verbally assaulting a passenger. On April 3, 2007, the
City terminated Plaintiff for making threatening comments concerning Mary Rowles. The City
denies that it terminated Plaintiff due to her sex, race, or as a result of any complaints that she
had made during her employment. Plaintiff concedes that she has no information or direct
evidence to show that the City terminated her for any reason other than the encounter with Mary
Rowles.

However, Murdock claims that she suffered disparate treatment because a male

Caucasian bus driver, Terry Beaver, was not terminated for striking a passenger. In May 2010, a
large, able-bodied passenger threatened and struck Terry Beaver, and Beaver responded by using
physical force in self-defense. The City investigated the incident and found that Terry Beaver
used only the physical force necessary to protect himself from further attack. Terry Beaver was
not disciplined for the altercation, and the passenger who initiated the attack was arrested.

14

Id. at 179.

15

Id. at 265.

16

Id.

17

Def. Ex. 8, at 268.

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Asserting that her termination was unlawful, Plaintiff submitted a grievance with the
assistance of her union. When the parties failed to resolve Plaintiff’s grievance amicably, the
parties submitted the matter to voluntary arbitration. Following two arbitration hearings in
August 2008, the arbitrator concluded that Plaintiff’s incident with Rowles did not warrant
termination and recommended that Plaintiff should be reinstated with back pay and with no loss
of seniority or benefits.

The Interim City Manager, Scott Moore, reinstated Plaintiff’s

employment by letter dated October 9, 2008. While Moore reinstated Plaintiff’s employment in
accordance with the arbitrator’s recommendation,18 Moore directed that the terms of Plaintiff’s
reinstatement would include a six-month probationary period and that her seniority, longevity,
vacation, and sick leave accrual rates would be reinstated at the conclusion of two additional
years of employment with the City.
On June 18, 2008, while her grievance was pending, Plaintiff filed administrative charges
with the Equal Employment Opportunity Commission (“EEOC”) and the Kansas Human Rights
Commission (“KHRC”).19 Plaintiff claimed that she was discriminated against on the basis of
her race, color, sex, and religion between December 31, 2000 and April 3, 2007. She also
claimed that she was sexually harassed and retaliated against. The EEOC reviewed Plaintiff’s
charge and issued her a right to sue letter on December 4, 2008. Proceeding pro se, Murdock
filed this lawsuit, asserting causes of action for race discrimination, color discrimination, sex
discrimination, age discrimination, religion discrimination, sexual harassment, wrongful
termination, and retaliation.

18

Under the Memorandum of Agreement between the City of Wichita and Plaintiff’s union, an arbitrator’s
findings and award constitute mere recommendations that the City Manager may reverse.
19

The charge that Plaintiff filed with the EEOC on June 18, 2008, amended and replaced a prior charge that
Murdock had filed with the EEOC on September 18, 2007.

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Defendant filed its first motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), arguing
that Plaintiff’s complaint was insufficient to assert plausible claims.

The Court granted

Defendant’s motion to dismiss, and Plaintiff filed an amended complaint asserting the same
claims with additional factual allegations. Defendant then filed a second motion to dismiss,
arguing that Plaintiff’s amended complaint failed to state claims upon which relief could be
granted. The Court granted Defendant’s second motion in part, dismissing Plaintiff’s claims for
wrongful termination and employment discrimination on the basis of age, color, and religion.
The Court denied the remainder of Defendant’s motion to dismiss, and the parties filed crossmotions for summary judgment on Plaintiff’s remaining claims for race discrimination, sexual
harassment, and retaliation.20
II.
A.

Standards

Summary Judgment

Summary judgment is appropriate if the moving party demonstrates that “there is no
genuine dispute as to any material fact” and that it is “entitled to judgment as a matter of law.”21
“An issue of fact is ‘genuine’ if the evidence allows a reasonable jury to resolve the issue either
way.”22 A fact is “material” when “it is essential to the proper disposition of the claim.”23 The
Court views the evidence and all reasonable inferences in the light most favorable to the party
opposing the motion for summary judgment under consideration.24

20

Neither party’s motion for summary judgment mentions Plaintiff’s claim for sex discrimination, which
also survived Defendant’s second motion to dismiss.
21

Fed. R. Civ. P. 56(a).

22

Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006).

23

Id.

24

LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).

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The moving party bears the initial burden of demonstrating the absence of a genuine issue
of material fact.25 In attempting to meet this standard, the moving party need not disprove the
nonmoving party’s claim; rather, the movant must simply point out the lack of evidence on an
essential element of the nonmoving party’s claim.26 If the moving party carries its initial burden,
the party opposing summary judgment cannot rest on the pleadings but must bring forth “specific
facts showing a genuine issue for trial.”27 The opposing party must “set forth specific facts that
would be admissible in evidence in the event of trial from which a rational trier of fact could find
for the nonmovant.”28

“To accomplish this, the facts must be identified by reference to

affidavits, deposition transcripts, or specific exhibits incorporated therein.”29

Conclusory

allegations alone are insufficient to defeat a properly supported motion for summary judgment.30
The nonmovant’s “evidence, including testimony, must be based on more than mere speculation,
conjecture, or surmise.”31
Though the parties in this case have filed cross-motions for summary judgment, the legal
standard remains the same.32 Each party retains the burden of establishing the lack of a genuine

25

Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex, 477 U.S. at 322-

23 (1986)).
26

Id. (citing Celotex, 477 U.S. at 325).

27

Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005).

28

Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197 (10th Cir. 2000) (citing Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
29

Adler, 144 F.3d at 671.

30

White v. York Int’l Corp., 45 F.3d 357, 363 (10th Cir. 1995).

31

Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

32

City of Shawnee v. Argonaut Ins. Co., 546 F. Supp. 2d 1163, 1172 (D. Kan. 2008).

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issue of material fact and entitlement to judgment as a matter of law.33 Each motion will be
considered separately.34 “To the extent the cross-motions overlap, however, the court may
address the legal arguments together.”35

Finally, summary judgment is not a “disfavored

procedural shortcut,” but it is an important procedure “designed to secure the just, speedy and
inexpensive determination of every action.”36
B. Pro Se Standard
“A pro se litigant’s pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.”37 Further, the Courts must take additional
precautions before ruling on a motion for summary judgment when a pro se litigant is involved:
“The rights of pro se litigants require careful protection where highly technical requirements are
involved, especially when enforcing these requirements might result in a loss of the opportunity
to prosecute or defend a lawsuit on the merits.”38 However, “pro se litigants are subject to the
same rules of procedure that govern other litigants.”39 “We do not believe it is the proper
function of the district court to assume the role of advocate for the pro se litigant.”40 For this
reason, “the court will not construct arguments or theories for the plaintiff in the absence of any

33

United Wats, Inc. v. Cincinnati Ins. Co., 971 F. Supp. 1375, 1381-82 (D. Kan. 1997) (citing Houghton v.
Foremost Fin. Servs. Corp., 724 F.2d 112, 114 (10th Cir.1983)).
34

Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000).

35

Berges v. Standard Ins. Co., 704 F. Supp. 2d 1149, 1155 (D. Kan. 2010).

36

Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).

37

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

38

Jaxon v. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir. 1985).

39

DiCesare v. Stuart, 12 F.3d 973, 979 (10th Cir. 1993).

40

Hall, 935 F.2d at 1110.

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discussion of those issues.”41 Even a pro se litigant “does not escape the essential burden under
summary judgment standards of establishing that there is a genuine issue as to a fact material to
[her] case in order to avert summary judgment.”42
III.

Analysis

A. Plaintiff’s Motion for Summary Judgment
The Court is mindful that because Ms. Murdock appears pro se in this case, it must
construe her pleadings and motions liberally.43 In this context, liberal construction compels the
Court “to look beyond a failure to cite proper legal authority, confusion of legal theories, and
poor syntax or sentence construction.”44 However, the fact that Plaintiff proceeds pro se does
not excuse her “noncompliance with every litigant’s duty to comply with the fundamental rules
of procedure.”45 Any party moving for summary judgment must show that there is no genuine
dispute as to any material fact and that she is entitled to judgment as a matter of law.46 Summary
judgment procedure requires that Plaintiff provide support for her factual allegations by “citing
to particular parts of materials in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations (including those made for purposes of

41

Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).

42

Hass v. U.S. Air Force, 848 F. Supp. 926, 929 (D. Kan. 1994) (quoting Brown v. Crawford, 906 F.2d
667, 670 (11th Cir. 1990)).
43

See Hall, 935 F.2d at 1110 & n. 3 (requiring liberal construction of a pro se party’s pleadings).

44

Id. at 1110.

45

Hammad v. Bombardier Learjet, Inc., 192 F. Supp. 2d 1222, 1229 (D. Kan. 2002) (citing Ogden v. San
Juan County, 32 F.3d 452, 455 (10th Cir.1994)).
46

Fed. R. Civ. P. 56(a).

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the motion only), admissions, interrogatory answers, or other materials . . . .”47 These factual
allegations must be numbered, and must also “refer with particularity to those portions of the
record upon which [the] movant relies.”48
Plaintiff’s motion for summary judgment includes over eight pages of handwritten
narrative without numbered paragraphs or any citation to the record. In the few pages where she
presents her factual allegations in lettered paragraphs, Plaintiff fails to support her allegations by
referring with particularity to relevant portions of the record. A pro se litigant may not simply
rely upon conclusory allegations.49

Although Murdock submitted nearly 400 pages of

documents with her amended complaint, the Court cannot serve as Plaintiff’s advocate by
constructing a factual statement in compliance with summary judgment procedure. Because
Plaintiff’s motion fails to establish the absence of a genuine issue of material fact or to
demonstrate her entitlement to judgment as a matter of law, her motion for summary judgment
must be denied.
B. Defendant’s Motion for Summary Judgment
1.

Race and Sex Discrimination

Plaintiff first asserts claims for race and sex discrimination under Title VII.50 More
specifically, Plaintiff contends that she suffered race discrimination related to two comments that

47

Fed. R. Civ. P. 56(c)(1)(A); see D. Kan. Rule 56.1(d) (“All facts on which a motion or opposition is
based must be presented by affidavit, declaration under penalty of perjury, and/or relevant portions of pleadings,
depositions, answers to interrogatories, and responses to requests for admissions.”)
48

D. Kan. Rule 56.1(a).

49

Hall, 935 F.2d at 1110.

50

Plaintiff’s amended complaint also asserts a claim for sex discrimination, which survived the City’s
second motions to dismiss. However, neither Plaintiff nor Defendant mentions this claim in their motions for
summary judgment. Nonetheless, the Court may consider the claim and grant summary judgment sua sponte.
Although “the practice of granting summary judgment sua sponte is not favored,” a sua sponte order of summary
judgment may be appropriate if “the losing party was on notice that she had to come forward with all of her
evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (quoting Procter & Gamble Co. v. Haugen, 317 F.3d

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she attributes to her supervisor, Howard Morris. Plaintiff also contends that she suffered both
race and sex discrimination by virtue of disparate treatment relating to her termination. As is
common in Title VII cases, Plaintiff has not come forward with direct evidence of race or sex
discrimination. In the absence of direct evidence, the Court evaluates Plaintiff’s claims under the
burden-shifting framework of McDonnell Douglas Corp. v. Green.51

Under McDonnell

Douglas, the plaintiff bears the initial burden of production to establish a prima facie case of
discrimination.52 If the plaintiff establishes a prima facie case, the burden shifts to the defendant
to articulate a legitimate and nondiscriminatory reason for its actions.53

If the defendant

articulates a legitimate nondiscriminatory reason, the burden shifts back to plaintiff to present
evidence from which a jury may reasonably conclude that the defendant’s proffered reason is
pretextual and unworthy of belief.54
To establish a prima facie case of discrimination, Murdock must show that (1) she is a
member of a protected class; (2) she suffered an adverse employment action; (3) she was
qualified for her position; and (4) she was treated less favorably than others not in the protected
class, giving rise to an inference of discrimination.55 “The plaintiff’s burden at the prima facie
stage of the McDonnell Douglas analysis is not onerous.”56 Plaintiff satisfies the first element as

1121, 1132 (10th Cir. 2003)). Here, sua sponte consideration is appropriate because both parties have come forward
with comprehensive factual allegations in their respective motions for summary judgment.
51

411 U.S. 792, 802-05 (1973); see Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004).

52

McDonnell Douglas, 411 U.S. at 802.

53

Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1113 (10th Cir. 2007).

54

Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir. 1998); Piercy v. Maketa, 480 F.3d 1192,
1203 (10th Cir. 2007) (citing Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 (10th Cir.1998)).
55

EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 & n. 5 (10th Cir. 2007).

56

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (internal quotations omitted).

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a member of a protected class by virtue of her female gender and her African-American race.57
The second element is also satisfied because Plaintiff’s termination constitutes an adverse
employment action.58 With the exception of the Rowles incident on February 15, 2007, there is
no dispute the Plaintiff satisfies the third element as a qualified van operator. The Court finds
that Plaintiff satisfies the fourth element as to her claims of race and sex discrimination arising
from alleged disparate treatment concerning her termination. Murdock claims that she was
terminated because she was an African-American woman who issued threats after being struck
by a Caucasian woman, while Terry Beaver, a Caucasian male bus driver, suffered no discipline
following an altercation with a passenger. At this stage of the analysis, Plaintiff’s preliminary
allegation is sufficient to show that she was treated less favorably than a male, Caucasian
employee.
However, the Court concludes that Plaintiff does not satisfy the fourth element of a prima
facie case for the portion of her race and sex discrimination claims that rely solely upon two
comments that Plaintiff attributes to Howard Morris. “Isolated comments, unrelated to the
challenged action, are insufficient to show discriminatory animus in termination decisions.”59 A
plaintiff must demonstrate that a nexus exists between the statement and the adverse employment
action.60 Murdock presents no evidence that either comment has any nexus to her discipline or
termination, which occurred more than five years later. Plaintiff has also failed to demonstrate

57

See English v. Colorado Dept. of Corr., 248 F.3d 1002, 1008 (10th Cir. 2001) (holding that AfricanAmerican litigants are members of a protected class); see Gooch v. Meadowbrook Healthcare Services of Florida,
Inc., 77 F.3d 492 (10th Cir. 1996) (holding that female litigants are members of a protected class).
58

See O’Neal v. Ferguson Const. Co., 237 F.3d 1248, 1255 (10th Cir. 2001) (holding that termination
constitutes an adverse employment action for the purposes of stating a prima facie case of discrimination under Title
VII).
59

Cone v. Longmont United Hospital Ass’n, 14 F.3d 526, 531 (10th Cir. 1994).

60

Id.

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that Morris contemplated her race or sex in any way when he used the phrase, “you people.” To
the contrary, the evidence before the Court indicates that Morris’ statement referred only to van
operators in a context concerning competition between van operators for overtime assignments.
Further, Plaintiff admits that she lacks any evidence that Morris contemplated Plaintiff’s race or
sex when he asked, “Do you want me to slap the hell out of you?” It is uncontroverted that
Murdock never heard any co-worker or supervisor make racial slurs toward her or toward any
other African-American employee. The evidence before the Court simply does not support
Plaintiff’s conclusory allegation that Morris’ statements were directed at her race or sex.
Therefore, while Plaintiff has stated prima facie claims of race and sex discrimination related to
disparate treatment in her termination, she has failed to state a prima facie claim of race
discrimination regarding the alleged comments attributed to Howard Morris.
Under McDonnell Douglas, the burden now shifts to Defendant to state a legitimate, nondiscriminatory reason for terminating Murdock.61 The employer’s burden at this stage of the
analysis is “exceedingly light.”62 The City alleges that it terminated Murdock for a legitimate
reason wholly unrelated to Plaintiff’s race and sex, namely, that Plaintiff committed a Class I
violation under its Operator’s Manual by issuing threatening language to and about Mary Rowles
on February 15, 2007. Further, the City has articulated legitimate reasons for the different
outcomes for Murdock and Terry Beaver.

Defendant alleges that following a thorough

investigation, the City found that Terry Beaver threatened and used physical force only in selfdefense after a large, able-bodied, male passenger had started an altercation. Defendant credibly
distinguishes this altercation from the incident giving rise to Plaintiff’s termination, where

61

McDonnell Douglas, 411 U.S. at 802.

62

Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1165 (10th Cir. 2007).

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Plaintiff used threatening language concerning a frail, blind, elderly woman who was departing
from Plaintiff and who did not pose a threat. The Court finds that the City has therefore satisfied
its burden by articulating a non-discriminatory reason for Plaintiff’s termination.
Because the City has stated a legitimate and non-discriminatory reason for Plaintiff’s
termination, Plaintiff must now come forward with evidence from which a jury could conclude
that the City’s proffered reason is pretextual.63 “Pretext can be shown by such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy
of credence and hence infer that the employers did not act for the asserted non-discriminatory
reasons.”64

A plaintiff typically makes a showing of pretext with: (1) evidence that the

defendant’s stated reason is false; (2) evidence that the defendant acted contrary to a written
policy; and (3) evidence that the defendant acted contrary to an unwritten policy or practice.65
Another way a plaintiff may demonstrate pretext is by producing evidence that she was treated
differently from similarly situated employees who violated comparable work rules.66 The Court
should consider this evidence as a whole.67
Here, Plaintiff attempts to demonstrate pretext by alleging that she was treated differently
than Terry Beaver under what she believes to be similar circumstances. However, Plaintiff has
failed to provide any evidence sufficient to demonstrate pretext. Plaintiff concedes that she has
no evidence to show that she was terminated for any reason other than her encounter with

63

Beaird, 145 F.3d at 1165.

64

McDonnell Douglas, 411 U.S. at 802.

65

Kendrick v. Penske Transp. Servs, Inc., 220 F.3d 1220, 1230 (10th Cir. 2000).

66

Id. at 1232.

67

Annett v. Univ. of Kan., 371 F.3d 1233, 1241 (10th Cir. 2004).

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Rowles. Plaintiff admits that during her encounter with Rowles, she said “I’m about to knock
her out,” and “Put her on another route or there’s going to be some mess.” Plaintiff also
confesses that these comments referred to physical violence toward Rowles. Further, Plaintiff
does not offer any evidence to rebut Defendant’s position that her conduct constituted a Class I
rule violation under the Operator’s Manual, warranting immediate termination. Finally, Plaintiff
agrees with the City that Terry Beaver only used the force necessary to protect himself from
further attack. The Court finds that this fact meaningfully distinguishes the circumstances that
faced Plaintiff and Terry Beaver. With no further evidence from Plaintiff, there is no basis upon
which a reasonable factfinder could conclude the City’s proffered reason for termination was
pretextual and unworthy of belief. Accordingly, Defendant is entitled to summary judgment on
Plaintiff’s claims for race and sex discrimination.
2.

Sexual Harassment

Plaintiff also asserts a claim for sexual harassment under Title VII. It is well established
that a litigant must file a charge of sexual harassment within 300 days of the alleged unlawful
conduct.68 “Title VII is not intended to allow employees to dredge up old grievances; they must
promptly report and take action on discriminatory acts when they occur. Unlitigated bygones are
bygones.”69 However, courts have recognized that this temporal limitation can be problematic
for sexual harassment claims, where the alleged conduct may occur in a series of events spanning
months or years.70

Accordingly, the Court may consider the complete history of sexual

harassment if a contributing act took place no more than 300 days before the plaintiff filed her

68

42 U.S.C. § 2000e-5(e)(1).

69

Duncan v. Manager, Dept. of Safety, City & County of Denver, 397 F.3d 1300, 1308-09 (10th Cir. 2005).

70

See Nat’l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002).

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EEOC charge.71

When analyzing the proper scope of conduct to consider, a court must

determine whether (1) any discrete act falls within the 300-day period before a plaintiff’s EEOC
charge, and (2) whether that recent act and prior conduct are part of the same unlawful practice.72
A series of discrete acts over time may constitute the same hostile work environment where “the
pre- and post-limitations period incidents involved the same type of employment actions,
occurred relatively frequently, and were perpetrated by the same managers.”73 Nonetheless, an
employee may not unreasonably delay the filing of a sexual harassment claim.74 While failure to
exhaust administrative remedies usually constitutes a jurisdictional bar to suit, a plaintiff’s
failure to file a timely charge with the EEOC is not a jurisdictional prerequisite, but rather, serves
as a defense similar to a statute of limitations.75
In its answer to Plaintiff’s amended complaint, the City reserved affirmative defenses that
Plaintiff’s claims are barred by the applicable statute of limitations and that Plaintiff had failed to
exhaust her administrative remedies in a timely manner. The City now argues that it is entitled
to summary judgment because Plaintiff’s sexual harassment claim is untimely. The Court
agrees. Because Plaintiff filed her first administrative charge on September 18, 2007, she must
demonstrate at least one discrete act of sexual harassment occurring later than November 23,
2006, within the 300 days prior to Plaintiff’s first EEOC charge. Plaintiff’s sexual harassment
claim primarily relates to three discrete comments attributed to Brad Davis. The most recent of
those alleged comments occurred in 2002, well over 300 days from the date that Plaintiff filed

71

Id. at 117.

72

Id. at 120.

73

Id.

74

Duncan, 397 F.3d at 1308.

75

Morgan, 536 U.S. at 121.

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her administrative charge. Accordingly, Plaintiff’s sexual harassment claim is untimely as it
relates to the alleged comments of Brad Davis.
While Plaintiff also alleges that Brad Davis became angry and jealous when he learned
that Murdock was dating Troy Bowens in November of 2002, no facts properly before the Court
serve to support any allegation that such jealousy led to sexual harassment after November 23,
2006. Plaintiff baldly asserts that on February 22, 2007, Anna Sparlin gave Murdock a false
“late” designation at Davis’ direction.

Plaintiff also alleges that after receiving a “late”

designation, she was unfairly sent home for insubordination. However, the uncontroverted facts
and affidavits before the Court tell a different story.

“Late” is a disciplinary designation

specifically defined in the Memorandum of Agreement between the City and Plaintiff’s union,
Teamster Union Local 795. The affidavits of Jay Banasiak and Michael Vinson, the City’s
Director of Transit, suggest that the City issued Plaintiff’s “late” designation in compliance with
the Memorandum of Agreement.76 No evidence suggests that Davis had any involvement with
Plaintiff receiving a “late” designation. Further, no evidence suggests that Davis caused Plaintiff
to be sent home for insubordination; to the contrary, Jay Banasiak suggests in his affidavit that
he unilaterally decided to send Plaintiff home because she yelled at Anna Sparlin so loudly that it
was heard throughout the Transit office.
Plaintiff simply cannot support her allegation that the discipline she received on February
22, 2007, was the result of sexual harassment involving Brad Davis. Because this incident does
not constitute a discrete act of sexual harassment within 300 days of Plaintiff’s administrative
charge, it cannot serve as a timely anchor for the Court’s consideration of alleged harassment
practices that occurred more than a decade ago. Defendant is entitled to summary judgment on
Plaintiff’s untimely claim for sexual harassment.
76

Affidavit of Jay Banasiak, Def. Ex. 2, at 2; Affidavit of Michael Vinson, Def. Ex. 5, at 3.

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3.

Retaliation

Plaintiff finally claims that Defendant retaliated against her. The relevant portion of Title
VII concerning retaliation claims provides, “[i]t shall be an unlawful employment practice for an
employer to discriminate against any of his employees . . . because he has opposed any practice
made an unlawful employment practice.”77 Like other claims for discrimination under Title VII,
the Court analyzes claims for retaliation under the McDonnell Douglas burden-shifting
framework.78 “To establish a prima facie claim for retaliation, a plaintiff must establish that “(1)
she was engaged in opposition to Title VII discrimination; (2) she was subjected to adverse
employment action subsequent to or contemporaneous with the protected activity; and (3) there
is a causal connection between the protected activity and the adverse employment action.”79
In support of the first prima facie element, Murdock asserts two distinct sets of factual
allegations. Plaintiff first alleges that she complained when overweight female co-workers in the
dispatch office made her work more difficult by assigning a high number of wheelchair-bound
passengers to her route. Plaintiff’s first allegation of retaliation is misplaced. Murdock does not
contend that her work assignments were the result of unlawful sexual harassment or
discrimination. Instead, Plaintiff asserts that her co-workers in the dispatch office were simply
“mad, jealous, upset and just evil.” While jealousy between co-workers may be unfortunate, it
does not independently constitute an unlawful employment practice under Title VII.80 The Court
finds that Murdock’s allegations regarding work assignments fail to demonstrate opposition to
Title VII discrimination.
77

42 U.S.C. § 2000e–3(a).

78

Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004).

79

Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1262-63 (10th Cir. 1998).

80

See 42 U.S.C. § 2000e-2.

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Plaintiff also seeks to establish the first prima facie element retaliation with a second set
of allegations concerning the conduct of the City’s former superintendent of transportation, Brad
Davis. According to Plaintiff, Davis became angry and jealous in November of 2002, when he
learned that Plaintiff was dating another City employee, Troy Bowens. Plaintiff contends that
when this jealousy led Davis to “retaliate” by directing Anna Sparlin to issue Plaintiff a false
disciplinary designation of “late.” In January of 2006, Murdock made a verbal complaint to the
City’s EEO officer, Susan Leiker, alleging that Davis was sexually harassing her. The Court
finds that this verbal complaint is sufficient to satisfy the first prima facie element regarding
opposition to Title VII discrimination.81 The second prima facie element of retaliation is also
satisfied because the parties agree that Plaintiff’s verbal complaint preceded her subsequent
discipline and termination.
However, Plaintiff cannot satisfy the third prima facie element of retaliation because she
has not produced any evidence to establish a causal relationship between her complaint and any
adverse employment action. A causal connection may be shown by “evidence of circumstances
that justify an inference of retaliatory motive, such as protected conduct closely followed by
adverse action.”82 “Unless there is very close temporal proximity between the protected activity
and the retaliatory conduct, the plaintiff must offer additional evidence to establish causation.”83
This Circuit has held that a one-and-one-half month period between protected activity and
adverse action is independently sufficient to establish causation, while a three-month period is

81

See Fye v. Oklahoma Corp. Comm'n, 516 F.3d 1217, 1228 (10th Cir. 2008) (holding that a plaintiff’s
verbal complaint of sexual harassment is sufficient to satisfy the first prima facie element of retaliation).
82

Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir.1982).

83

O’Neal v. Ferguson Const. Co., 237 F.3d 1248, 1253 (10th Cir. 2001) (citing Conner v. Schnuck Mkts.,
Inc., 121 F.3d 1390, 1395 (10th Cir.1997)).

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insufficient.84 Here, Plaintiff’s verbal complaint occurred in January 2006, more than a year
earlier than her discipline on February 22, 2007, or her termination on April 3, 2007. With no
close temporal proximity between the protected activity and the adverse actions, Plaintiff must
come forward with evidence to establish causation. In this case, Plaintiff has failed to produce
any evidence that could establish a causal relationship between her verbal complaint and her
discipline or termination. Therefore, Plaintiff has failed to demonstrate a prima facie case of
retaliation, and the Court grants Defendant’s motion for summary judgment as to Murdock’s
retaliation claim.
IT IS ACCORDINGLY ORDERED that Defendant’s Motion for Summary Judgment
(Doc. 99) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment (Docs.
101 and 105) is DENIED.
IT IS SO ORDERED.
Dated this 18th day of September, 2012.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

84

Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999) (citation omitted).

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