Rice v. State of Kansas Department of Corrections: Topeka Correctional Facility
Filing
106
MEMORANDUM AND ORDER. Defendants motion for summary judgment (Dk. 79) is granted, and that plaintiffs motion for partial summary judgment (Dk. 90) is denied. See attached for more details. See also Case No. 09-4133-SAC. Signed by U.S. District Senior Judge Sam A. Crow on 5/26/2011. (bmw) Added language on 5/26/2011 (bmw).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHELLE D. RICE,
Plaintiff,
V.
No. 08-4132-SAC and
No. 09-4133-SAC
STATE OF KANSAS,
Defendant.
MEMORANDUM AND ORDER
These consolidated Title VII cases come before the court on defendant’s motion
for summary judgment and plaintiff’s motion for partial summary judgment. Plaintiff
seeks summary judgment on her claim of hostile work environment sexual harassment,
but not on her claim of retaliation.
Summary Judgment Standard
On summary judgment, the initial burden is with the movant to point out the
portions of the record which show entitlement to judgment as a matter of law. Thomas v.
Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.1992), cert. denied, 506
U.S. 1013 (1992). In applying this standard, the court views the evidence and all
reasonable inferences drawn from the evidence in the light most favorable to the
nonmoving party. Adler v. WalMart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). If
this burden is met, the non-movant must set forth specific facts which would be
admissible as evidence from which a rational fact finder could find in the non-movant's
favor. Id., at 671. The non-movant must show more than some “metaphysical doubt”
based on “evidence” and not “speculation, conjecture or surmise.” Matsushita Elec.
Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Bones v. Honeywell
Intern., 366 F.3d 869, 875 (10th Cir. 2004). The essential inquiry is “whether the
evidence presents a sufficient disagreement to require submission to the jury or whether
the evidence is so one-sided that one party must prevail as a matter of law.” Anderson
v. Liberty Lobby, 477 U.S. 242, 251-52 (1986). However, “[w]here 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.’ “ Matsushita, 475 U.S. at 587. See Pinkerton v. Colorado Dept.
of Transp., 563 F.3d 1052, 1058 (10th Cir. 2009).
Facts
In March of 2007, plaintiff was hired by defendant as a Corrections Officer I. On
April 2, 2008, plaintiff timely reported to work for her 2 p.m. shift, wearing her work
uniform which consisted of pants, a shirt, boots, and belt. To plaintiff’s surprise, she and
other employees were required to pass through a newly installed and highly sensitive
metal detector. Defendant’s policy requiring employees to pass through the new metal
detector was not supposed to be implemented until April 21st. Corrections Supervisor I
Johnstone, and Corrections Officer II Thompson were working the metal detector at the
time.
The first time plaintiff walked through the metal detector, it alerted. Plaintiff was
told to remove the metal stays on her pants, her boots, and her belt, and did so. On her
second try, plaintiff was scanned with a handheld detector, which alerted in her upper
torso area. Plaintiff explained her belief that the underwire in her bra had caused the
alert. After plaintiff’s third unsuccessful try, Officer Johnstone notified Captain Mathias of
2
the facts and was told that plaintiff would have to remove her bra and walk to her post
before replacing it.
Officer Johnstone was aware that the relevant order (TCF Post Order #24) said
nothing about employees having to remove undergarments. Nor did that order provide
for a strip search if an employee failed to clear the metal detector a third time. The most
intrusive measure it allowed was a pat down, unless there was reasonable suspicion
that the employee was in possession of contraband. When Officer Johnstone notified
Captain Mathias of the facts and was told plaintiff would have to remove her bra and
walk to her post before replacing it, he protested that requiring employees to remove
undergarments was not in the written policy, but was told it was a direct order and to do
as he was told. Officer Johnstone was disturbed by this order, and got express
confirmation of it from his Lieutenant and then from his Captain, and reconfirmed it each
time a woman failed to clear the metal detector. Each time he was told that they had to
step through the metal detector without any alert, even if it meant they had to remove
their undergarments and walk to their post before replacing them.
Officer Johnstone told plaintiff she would have to remove her bra, pass through
the metal detector, and walk to her post braless. She became upset, felt humiliated, and
started to cry. Three of plaintiff’s superior officers came down from Captain Mathias’s
office and told plaintiff that if she did not remove her bra and walk to her post braless,
she would not be permitted to work. Co-workers, volunteers, and inmates were present
at the time, and plaintiff was visibly upset. Officer Short stated the incident made him
feel as though he “had been forced to watch a rape,” and he filed an internal EEO
sexual harassment complaint because of the incident.
3
At some point, plaintiff went into the restroom where she removed her bra,
placed it in a bucket, and replaced her shirt. The bucket was run through the scanner
and was then returned to plaintiff. Plaintiff was crying and felt humiliated and wanted to
go home, so called the Captain to see if she could do so. The Captain told her that if
she left, her absence would be unauthorized. Plaintiff responded that she was ill and
mentally overwrought by the incident, and could not face the inmates, at which point the
Captain asked plaintiff to come to his office. It is disputed whether plaintiff went to the
Captain’s office before or after she removed her bra. Officer Johnstone testified that the
plaintiff went to the captain’s office before she removed her bra. Plaintiff testified that
she went to the Captain’s office after she removed her bra, while braless, but also
testified that she went there wearing her bra.1 When plaintiff told the Captain she
wanted to go home to change into another bra, she was noticeably upset and choking
on her words. He responded that if she went home instead of walking to her post
braless, her absence would be considered unauthorized and she could face disciplinary
action including termination.
Plaintiff was told that it was necessary for her to keep her bra off until she got to
her post because if she put it back on in the closest restroom, she “would have to go
through the metal detector again” and it “would set off again.” Id, p. 41. Defendant
believed that there was no suitable place between the area of the metal detector and
1
Plaintiff also testified, however, that she went to the captain’s office because she
was debating going home to get a bra without wire “so she wouldn’t have to remove” it.
Rice depo. p. 38. Plaintiff subsequently testified that they told her she “would have to
take off my bra – or – my bra was already off. They said I would have to leave my bra
off until I got to my post. Id., p. 40.
4
the plaintiff’s duty station for plaintiff to use to replace her bra. Afraid of losing her job,
plaintiff eventually walked crying and braless to her post , then went into a restroom and
replaced her bra. Because it was time for shift change, there was lots of foot “traffic,” so
an unspecified number employees and inmates witnessed plaintiff walking from the SAC
building where the metal detector was, to the captain’s office, then to her post. Plaintiff
later sought counseling because of this metal detector incident.
That day, plaintiff overheard lots of inmates and employees talking about the
incident. Plaintiff does not recall their names, and does not recall what they said
because she just heard “little bits and pieces” of the conversations. The next day,
plaintiff heard a female officer ask a male, Officer Hester, what he thought of the
incident, and he replied: “I kind of liked it. I just wish I could pick and choose who I
wanted to remove their bras.” Rice depo., p. 49-50. Plaintiff believes that for days
afterwards, people in the whole facility were talking about the incident. Plaintiff
complained to Captain Garvin about Officer Hester’s comment, and he told her to write
it down so he could discipline the employees. She did not do so because she didn’t
want to single out only those two individuals.
On April 2nd or 3rd, plaintiff met with Deb Mayo, an EEO officer for defendant,
who told plaintiff to fill out a grievance form. Plaintiff did so soon thereafter. On April 4th,
Deputy Warden Cummings met with plaintiff and verbally apologized to her regarding
the metal detector incident. He also met with her on April 11, 2008, and assured her that
permanent changes were being made to the new screening procedures. On April 14th,
Deputy Warden Cummings, in his written response to plaintiff’s grievance, concluded:
Security personnel that were conducting the metal detector screening on
5
April 2, 2008 appear to have followed the procedures set out in IMPP 12-121 and
post order # 24, except that the opportunity to remove the article of clothing, as
an alternative to a strip search, was given.
When it was discovered that the procedure resulted in the negative
outcome experienced by Ms. Rice, action was taken to change the procedure.
The published version of IMPP 12-121 reflects that the effective date is
April 21, 2008. Accordingly, [defendant] was not required to fully enforce the
policy until that date. We agree that the policy should not have been enforced
until that date.
Likewise we agree that it is not appropriate
There is no evidence that there was any intent to humiliate or harass any
employee. It appears that the intent of staff was to carry out the provisions of
IMPP 12-121.
Dk. 98-4, p. 11. The grievance response notes the “action taken” was: “Post Order # 24
will be modified to the extent that a pat search done by a same gender employee in a
private place may be used to verify that an undergarment is the cause of a metal
detector alert, and that contraband is not present ...” Id. The Post Order was changed
effective May 7, 2008, and it additionally added that “[a]t no time shall any Employee or
Volunteer be required to remove any undergarment.” Dk. 90, Exh. 4.
Plaintiff filed a claim of sexual harassment with the EEOC and the Kansas
Human Rights Commission on July 20, 2008. She later received a right to sue letter
from the EEOC.
In October of 2008, plaintiff broke her leg in a non-work related accident and
began FMLA leave from work on or about October 22, 2008. When plaintiff’s FMLA
leave expired near the end of January, she went on leave without pay (LWOP) status
until sometime in March of 2009 when she returned to work.
After plaintiff returned to work, she and other COIs were asked to apply for a
promotion to a Corrections Officer II position, as was standard procedure. Plaintiff was
promoted on May 1, 2009 and, pursuant to policy, was placed on probationary status.
6
On July 29, 2009, plaintiff received an “unsatisfactory” performance appraisal which she
appealed. The Appeal Board upheld the appraisal rating and recommended plaintiff’s
demotion back to COI. Warden Koerner demoted plaintiff to that classification on August
13, 2009. Plaintiff remained employed until April of 2010. Other uncontested facts will
be included as relevant, below.
I. Exhaustion
Defendant first contends that plaintiff has failed to exhaust her administrative
remedies because she did not obtain the a right to sue letter from the Attorney General.
The relevant statute states that if the EEOC dismisses a charge in a case involving a
government, governmental agency, or political subdivision, the Attorney General shall
issue the right to sue letter. 42 U.S.C.A. § 2000e-5. Defendant contends that because
plaintiff has sued the State of Kansas, this statute requires a right to sue letter from the
Attorney General. Plaintiff tacitly concedes that she made no effort to get a right to sue
letter from the Attorney General, but claims such a request would have been futile, and
that her right to sue letter from the EEOC should suffice. The Court agrees.
The Tenth Circuit has interpreted the statutory language quoted above to require
plaintiffs to obtain a right to sue letter from the Attorney General, rather than from the
EEOC, in all cases involving a governmental respondent. See Hiller v. Oklahoma ex rel.
Used Motor and Parts Com'n, 327 F.3d 1247, 1251-1252 (10th Cir. 2003); Thames v.
Oklahoma Historical Soc'y, 646 F.Supp.13, 16 (W.D.Okla. 1985), aff'd per curiam, 809
F.2d 699 (10th Cir. 1987). The requirement is not jurisdictional, but is instead a
condition precedent to suit. Hiller, 327 F.3d at 1251-51. Accordingly, because plaintiff
does not have a letter from the Attorney General, she has not complied with the statute.
7
Nontheless, equitable considerations may permit a plaintiff to go forward. A Title
VII plaintiff who cannot satisfy the exhaustion requirement may avoid dismissal by
establishing one of the available equitable doctrines. Townsend v. State of Okl. ex rel.
Oklahoma Military Dept.,760 F.Supp. 884, 886 (W.D.Okla. 1991), approved in Hiller. In
Townsend, the Court found this particular requirement to be subject to the equitable
doctrines of waiver, estoppel, or modification, and waived the requirement because the
Attorney General refused to issue the letter despite the plaintiff’s diligent attempt to
comply with the statute. Here, in contrast, plaintiff has apparently made no effort to
comply with the statute.
Nonetheless, the court believes such act would have been a futile gesture, which
the law does not require. The Attorney General has a work-share agreement with the
EEOC, codified at 29 C.F.R. § 1601.28(d), which shifts the duty to the EEOC to issue
letters in cases such as this, where "there has been a dismissal of a charge." Stewart v.
Oklahoma, 292 F.3d 1257, 1258 -1259 (10th Cir. 2002), cert. denied, 537 U.S. 1104
(2003). The regulation states: “In all cases where the respondent is a government,
governmental agency, or a political subdivision, the Commission will issue the notice of
right to sue when there has been a dismissal of a charge.” 29 C.F.R. § 1601.28(d).
Plaintiff is therefore in a Catch-22 situation: “The statute requires her to get a letter from
the Attorney General, but the regulations prevent her from getting that letter. “ Lugo v.
City of Charlotte, 577 F.Supp. 988, 990 (W.D.N.C. 1984).
The Tenth Circuit has made clear that requesting such letters is futile, because
such requests are routinely denied.
... the situation created by the catch-22 between the statute and the
8
regulations is “obviously unfair.” Fouche, 713 F.2d at 1526. [Plaintiff] would have
no way to pursue her complaint if an equitable accommodation were not granted,
given that the Attorney General deems the right to sue notice from the EEOC to
be sufficient to meet the Attorney General's duties under the statute. Although
[plaintiff] has at this point received a refusal from the Attorney General, we agree
with the other courts that have noted the futility of requesting such letters when
the requests are routinely denied. See, e.g., Townsend, 760 F.Supp. at 887-88.
As we observed in Martinez, “if a plaintiff ... has in some extraordinary way been
prevented from asserting his or her rights, we will permit tolling of the limitations
period.” Martinez, 738 F.2d at 1110 (quotation omitted). The interests of justice
require that we provide equitable relief in such a situation, in order to preserve for
plaintiff an avenue by which to pursue her complaint. Cf. Burnett v. N.Y. Cent.
R.R. Co., 380 U.S. 424, 429, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965) (indicating
“interests of justice require vindication of the plaintiff's rights” where plaintiff “has
been prevented from asserting them”). We therefore conclude that the district
court's refusal to grant equitable relief constituted an abuse of discretion.
Hiller, 327 F.3d at 1252 (reversing district court’s grant of summary judgment to
defendant based on lack of right to sue letter from attorney general.)
Here, as in Hiller, it would work an injustice “to deprive [plaintiff] of a remedy for
failure to meet a nonjurisdictional requirement that is beyond her control.” Hiller, 327
F.3d at 1252. Defendant’s motion for summary judgment on this basis is therefore
denied.
II. Sexual harassment - hostile work environment
To establish a claim of sexual harassment, plaintiff must prove that she was
harassed on account of her sex and that the harassment was pervasive or severe
enough that it affected a term, condition, or privilege of her employment. McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973); Bolden v. PRC, Inc., 43 F.3d 545, 551
(10th Cir. 1994), cert. denied, 516 U.S. 826 (1995).2
2
Because the defendant concedes that its acts were “because of . . . sex,” Dk.
99, p. 13, the Court does not address this requirement. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring) (“The critical issue, Title VII's text
9
The court first assesses whether a reasonable jury could conclude, based on the
evidence of record, that “[plaintiff’s] workplace [was] permeated with discriminatory
intimidation, ridicule, and insult, that [was] sufficiently severe or pervasive to alter the
conditions of her employment and create an abusive working environment.” Herrera v.
Lufkin Industries., Inc., 474 F.3d 675, 680 (10th Cir. 2007) (internal quotation marks
omitted). “Pervasiveness and severity are independent and equal grounds” upon which
a plaintiff may establish this element of a hostile environment claim. Witt v. Roadway
Express, 136 F.3d 1424, 1432 (10th Cir. 1998), cert. denied, 525 U.S. 881 (1998).
Nevertheless, those two grounds “are, to a certain degree inversely related; a
sufficiently severe episode may occur as rarely as once ..., while a relentless pattern of
lesser harassment that extends over a long period of time also violates the statute.”
Tademy v. Union Pacific Corp., 614 F.3d 1132, 1144 (10th Cir. 2008), quoting Cerros v.
Steel Techs., Inc., 288 F.3d 1040, 1047 (7th Cir. 2002).
The Court finds that the metal detector incident was not pervasive because it was
a one time event. See Faragher v. City of Boca Raton, 524 U.S. 775, 787, n. 11 (1998)
(finding incidents of environmental sexual harassment "must be more than episodic;
they must be sufficiently continuous and concerted in order to be deemed pervasive.")
Defendant additionally contends that the incident was not severe because no
physical touching occurred. The Court declines to adopt this limitation, finding instead
that it must consider the totality of the circumstances, as the Tenth Circuit has
instructed:
indicates, is whether members of one sex are exposed to disadvantageous terms or
conditions of employment to which members of the other sex are not exposed.”)
10
“In making this determination, we consider the work atmosphere both
objectively and subjectively, looking at all the circumstances from the perspective
of a reasonable person in the plaintiff's position.” Herrera, 474 F.3d at 680
(internal quotation marks and alterations omitted). We may consider the
conduct's frequency and severity; “whether it is physically threatening or
humiliating, or a mere offensive utterance”; and whether it unreasonably
interferes with the plaintiff employee's work performance. Harsco Corp. v.
Renner, 475 F.3d 1179, 1187 (10th Cir. 2007).
Tademy, 614 F.3d at 1144. Although "no single factor is required," Lockard v. Pizza Hut,
Inc., 162 F.3d 1062, 1072 (10th Cir. 1998), an isolated incident, unless extremely
serious, will not amount to discriminatory changes in the terms of employment.
Faragher, 524 U.S. at 788.
The Court finds that the incidents alleged by the plaintiff, even viewed together in
the light most favorable to her, are not sufficiently severe or pervasive as to raise a
material question of fact as to sexual harassment.
First, defendant’s purpose was not to discriminate against the plaintiff or any
female based on sex. The new security requirement to pass through the metal detector
was imposed on all corrections officers, regardless of their gender. It did not have a
disparate impact on all females, but on the plaintiff because of the structure of the bra
she was wearing at the time. Plaintiff has not shown that the conduct's disproportionate
impact on women is great, or that many other women were negatively affected by the
new security procedure, thus no group-based effect has been shown. Additionally,
although plaintiff was required to walk to her post braless, no facts suggest that this was
because of intentional gender animus or sexual desire. Instead, the record shows this
was only because superior officers determined, rightly or wrongly, that her doing so was
necessary for security reasons, and believed that there was no place for plaintiff to
11
change her clothes until she reached her duty station. None of the facts that would tend
to show gender animus or ill will have been established.
Nor was the effect of the incident on plaintiff physically threatening. Although the
incident was humiliating, the facts fail to establish that the degree of humiliation suffered
by the plaintiff was due solely to defendant’s acts. Neither party has informed the Court
how far the Captain’s office was from plaintiff’s post or from the metal detector, or
whether it was even apparent to inmates or others on plaintiff’s walk to her post that she
was braless. Plaintiff speculates that the incident could cause her to lose the respect of
inmates, but no facts have been established that show any knowledge of the incident or
of her bralessness by inmates at her post, or any loss of respect, or any other impact of
this incident on plaintiff’s workplace.
Additionally, it is significant that the plaintiff works in a correctional facility and
that the incident involved security devices and procedures. “A detention facility is a
unique place fraught with serious security dangers. Smuggling of money, drugs,
weapons, and other contraband is all too common an occurrence.” Bell v. Wolfish, 441
U.S. 520, 559 (1979). Just as the Court’s role is not to remedy bad employment
decisions or to sit as a super-personnel department, Johnson v. Weld County, Colo.,
594 F.3d 1202, 1211 (10th Cir. 2010), the Court does not presume to sit as an expert in
matters of security in correctional facilities. Courts must accord prison administrators
"wide-ranging deference in the adoption and execution of policies and practices that in
their judgment are needed to preserve internal order and discipline and to maintain
institutional security." Bell, 441 U.S. at 547.
“[F]ederal courts ought to afford appropriate deference and flexibility to state
12
officials trying to manage a volatile environment.” Sandin v. Conner, 515 U.S.
472, 482, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). “Such flexibility is especially
warranted in the fine-tuning of the ordinary incidents of prison life.” Id. ...
Correctional officials are professional experts in matters of security and
discipline; as such they are better suited to make decisions about security and
discipline than are the courts. Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861,
60 L.Ed.2d 447 (1979).
Altman v. McKee, 2009 WL 891707, 8 (W.D.Mich. 2009). Defendant’s policy and the
supervisor’s decision to deviate from it were motivated by security concerns, not by
sexual interest or sexual animus.
Further, the incident occurred on the first day of a new security procedure which
was implemented 19 days prematurely, so neither the employees walking through the
metal detector nor the officers administering the security procedure were thoroughly
familiar with administering it. The outcome experienced by the plaintiff was obviously not
foreseen by defendant, because: 1) when the incident occurred, the officer doing the
screening had to call his Captain for directions on how to proceed; and, 2) soon after
defendant learned that the procedure resulted in the negative outcome experienced by
the plaintiff, defendant changed the procedure to avoid its recurrence. The metal
detector incident, although perhaps the result of defendant’s negligence, does not
evidence intentional harassment. This lessens the severity of the acts.
Additionally, Deputy Warden Cummings met with plaintiff two days after the
incident, even before plaintiff filed a grievance about it, and verbally apologized to her.
His apology is echoed in his later response to plaintiff’s grievance, in which he agreed
that the policy should not have been enforced until a later date, and “it is not
13
appropriate”.3 Swift apologies and admissions abate, at least somewhat, the severity of
the incident. See Witt, 136 F.3d at 1433.
The Court also considers the co-employees’ comments after the metal detector
incident, but plaintiff’s allegations of their gossip are vague and conclusory, without
reference to specific dates, circumstances, persons, or statements. Plaintiff does not
allege that the comments were directed to her or that the speakers knew she was within
earshot. That the comments were only inadvertently overheard by plaintiff “indicates a
lower degree of animosity and severity than is present in the typical case, in which a
harassing supervisor deliberately inflicts the harassment on the victim.” Witt, 136 F.3d at
1433. Plaintiff complains only that others related the facts about the metal detector
incident, and does not show a steady barrage of opprobrious sexual or vulgar
comments. Plaintiff’s evidence of gossip is not sufficient to create a genuine issue of
material fact as to sexual harassment. See Ford v. West, 222 F.3d 767, 777 (10th Cir.
2000).
Plaintiff specifies only one comment she overheard - a gender-related joke by
Officer Hester in response to another officer’s question.4 This isolated comment is a far
cry from the vulgar “gender-specific epithet” that usually supports sex-based claims of
hostile work environment. Even a few incidents of gender animus do not establish a
pervasively hostile work environment, E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790 (10th Cir.
3
The context does not clarify what “it” is, and the sentence contains no period, as
if the remainder of the sentence had been deleted. See Dk. 98-4, p. 11.
4
Officer Hester, when asked what he thought of the incident, replied: "I kind of
liked it. I just wish I could pick and choose who I wanted to remove their bras." Rice
depo., p. 49-50.
14
2007), citing Herrera, 474 F.3d at 680; Chapman v. Carmike Cinemas, 307 Fed.Appx.
164, 171, 2009 WL 57504, 6 (10th Cir. 2009). Title VII is not a “general civility code”
and“sporadic use of abusive language, gender-related jokes, and occasional teasing”
are among “the ordinary tribulations of the workplace” (quotations omitted)). Faragher v.
City of Boca Raton, 524 U.S. 775, 788 (1998). Nonetheless, when Captain Garvin
learned about Officer Hester’s comment, he took it seriously and told plaintiff to write it
down so he could discipline the employees involved. Plaintiff chose not to do so and
cannot now blame defendant for not having investigated or disciplined others.
The Court is sympathetic to the predicament plaintiff experienced, and believes
that she was understandably humiliated by the incident. Nonetheless, the record fails to
raise a material question of fact as to the severity or pervasiveness of sexual
harassment. See Witt, 136 F.3d 1424; Creamer v. Laidlaw Transit, Inc., 86 F.3d 167,
170-71 (10th Cir.) (finding insufficient pervasiveness although harasser pinned the
victim on a pool table), cert. denied, 519 U.S. 983 (1996); Hayes v. Cosentino's Price
Chopper Food Stores, Inc., 2004 WL 1004491, *12 (D.Kan. 2004) (citing cases of
insufficient severity).
Accordingly, the Court finds it unnecessary to determine whether defendant
could be found liable under Title VII, see Tademy, 614 F.3d at 1146 -1147 (discussing a
negligence theory), or whether the Court should adopt the "McCurdy modification" to the
Ellerth/Faragher affirmative defense to respondeat superior liability for one-time
harassment by a supervisor, see Chapman v. Carmike Cinemas, 307 Fed.Appx. 164,
170, 2009 WL 57504, 5 (10th Cir. 2009).
III. Retaliation
15
Plaintiff additionally contends defendant violated Title VII by retaliating against
her for alleging that defendant sexually harassed her.
To establish a prima facie case of retaliation under Title VII, a plaintiff must show
that “(1) she engaged in protected opposition to discrimination; (2) she suffered
an adverse action that a reasonable employee would have found material; and
(3) there is a causal nexus between her opposition and the employer's adverse
action.” Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1086 (10th Cir. 2007)
(quoting Antonio, 458 F.3d at 1181).
Johnson v. Weld County, Colo., 594 F.3d 1202, 1215 (10th Cir. 2010). If a plaintiff
establishes a prima facie case, the defendant “has the burden of coming forth with a
legitimate, nondiscriminatory reason for adverse action.” Butler v. City of Prairie Village,
Kan., 172 F.3d 736, 752 (10th Cir.1999). If the defendant meets that burden, the burden
shifts back to the plaintiff to show that “the reason given by the employer is mere pretext
for the real, discriminatory reason for the adverse action.” Hennagir v. Utah Dept. of
Corrections, 587 F.3d 1255, 1265 (10th Cir. 2009).
Defendant does not dispute that plaintiff engaged in protected activity by
complaining of sexual harassment to the EEOC on July 20, 2008. Instead, defendant
contends that plaintiff has not shown adverse action in some cases, or a causal
connection in any case.
Adverse action
An “adverse action” for purposes of a retaliation under Title VII of the Civil Rights
Act of 1964, “is not limited to discriminatory actions that affect the terms and conditions
of employment.” Reinhardt v. Albuquerque Public Schools Bd. of Educ., 595 F.3d 1126,
1133 (10th Cir. 2010), citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64
16
(2006). In determining whether an employee has suffered adverse action for purposes
of retaliation under Title VII, the Court uses the objective standard of a “reasonable
employee.”
...Title VII protects individuals ‘not from all retaliation’ but only from retaliation
‘that produces an injury or harm’ ” that itself rises to a “ ‘level of seriousness.’ ” Id.
at 1087 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126
S.Ct. 2405, 165 L.Ed.2d 345 (2006)). To qualify under this standard, we held in
Williams that a plaintiff must show “a reasonable employee would have found the
challenged action materially adverse, which in this context means it well might
have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. (quoting White, 548 U.S. at 68, 126 S.Ct. 2405) (internal
quotation marks omitted). “Requiring this level of adversity ... is necessary ‘to
separate significant from trivial harms,’ ” id. (quoting White, 548 U.S. at 68, 126
S.Ct. 2405), “petty slights, minor annoyances, and simple lack of good manners,”
White, 548 U.S. at 68, 126 S.Ct. 2405. “Otherwise, minor and even trivial
employment actions that an irritable, chip-on-the-shoulder employee did not like
would form the basis of a discrimination suit.” MacKenzie v. City & County of
Denver, 414 F.3d 1266, 1279 (10th Cir. 2005) (quoting Smart v. Ball State Univ.,
89 F.3d 437, 441 (7th Cir. 1996)).
Johnson, 594 F.3d at 1216. In such cases, the Court construes the phrase “adverse
employment action” liberally and does not limit it to “monetary losses in the form of
wages or benefits.” Annett v. Univ. of Kan., 371 F.3d 1233, 1239 (10th Cir. 2004)
(quotation marks and citation omitted). In retaliation cases, “acts that carry “a significant
risk of humiliation, damage to reputation, and a concomitant harm to future employment
prospects” may be considered adverse actions, although “ ‘a mere inconvenience or an
alteration of job responsibilities' will not suffice.” Id. (citation omitted).” Reinhardt v.
Albuquerque Public Schools Bd. of Educ., 595 F.3d 1126, 1133 (10th Cir. 2010)
(applying ADA standard of retaliation).
Plaintiff alleges the following retaliatory adverse actions: unwarranted write ups,
denial of light duty assignment, denial of benefits, denial of seniority rights, and
17
demotion. Dk 76, p. 6.5
Unwarranted write ups
Plaintiff contends that she was given unwarranted write ups in April, May and
June of 2008, after she filed her internal grievance noting sexual harassment. It is well
established use of the employer's internal grievance procedures constitutes protected
activity under Title VII. See Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir.
2000). In support of this factual assertion, plaintiff cites only to her disciplinary file, Exh.
33. See Dk. 99, p. 37. The court has reviewed its entirety, and finds only one document
bearing a 2008 date. This document shows that CS1 Sweatt spoke to plaintiff about
time sheets on one occasion. A single write-up which fails to demonstrate any harm to
one’s future employment prospects is not an adverse employment action. Dick v. Phone
Directories Co., Inc., 397 F.3d 1256, 1270 (10th Cir. 2005). The disciplinary file fails to
raise a material question of fact that plaintiff was disciplined or otherwise subjected to
adverse action during the months of April, May or June of 2008, as alleged.
Denial of light duty assignment
Plaintiff’s doctor signed a form releasing her to light duty on February 5, 2009.
This release was faxed to defendant, who did not receive it until March 4th. Plaintiff
returned to work in March on a date not specified by the parties.
Defendant asserts that plaintiff never submitted the required application for a light
duty assignment for her leg injury, so was never denied light duty, and thus did not
5
Plaintiff’s briefs discuss additional adverse actions, but the Court will not
consider matters not included in the pretrial order. See Dk 76; Rule 16(e); Cortez v.
Wal-Mart Stores, Inc., 460 F.3d 1268, 1276-77 (10th Cir. 2006).
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suffer adverse action. It is uncontested that plaintiff had requested and received a light
duty assignment in 2007, so she knew what the procedure was, and had access to
defendant’s required forms on the internet, but failed to submit them for her leg injury in
2008. Plaintiff contends that doing so would have been futile, and establishes that
defendant’s Human Resources Director, Mr. Harold, repeatedly and erroneously told
her6 that light duty was reserved for employees who, unlike plaintiff, had work-related
injuries. Plaintiff cites the contrary testimony of Warden Koerner that light duty is
available to any staff member “if there is a light duty post available.” Dk.100, Exh. 21, p.
73. But plaintiff has failed to show that there was a light duty post available in February
or March of 2009.
Causal connection
Even assuming, arguendo, that plaintiff was improperly denied the opportunity
for available light duty work in February of 2009, and that such act constitutes adverse
action,7 the six month time period between that date and the date of plaintiff’s protected
activity (her filing of her EEOC charge of sexual harassment on July 20, 2008) is too
remote to demonstrate a causal connection between the two events, absent other
6
The cited conversation occurred on March 24th, after plaintiff filed a grievance
about not getting the February circulation of post rotation duty. Any misrepresentations
made during that conversation would not be a basis for plaintiff’s belief prior to that date
that submitting the required form would be futile. Other documentation in October of
2008 reveals plaintiff’s understanding that no light duty assignment was “available to
[her] at this time...” but that “if light duty should become available, I will return to work
when I am released to light duty.” Dk. 99, Exh. 5.
7
The denial of a transfer, even to light duty, constitutes a materially adverse
action only if the employee presents some evidence beyond her subjective desire for
the position. Semsroth v. City of Wichita, 555 F.3d 1182, 1186 (10th Cir. 2009).
19
factors. See Myers v. LeFlore County Bd. of Com'rs, 134 F.3d 383, 1998 WL 43170, 4,
Table (10th Cir. 1998) (“... it is clear the gap of six to seven months between the
occurrences is not sufficient to justify an inference of causation); Conner v. Schnuck
Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (four-month time lag between
participation in protected activity and termination not sufficient to justify inference of
causation). A “causal connection” between a protected action and a subsequent
adverse action can be shown through “evidence of circumstances that justify an
inference of retaliatory motive, such as protected conduct closely followed by adverse
action.” Proctor v. United Parcel Service, 502 F.3d 1200, 1208 (10th Cir. 2007) (quoting
Haynes v. Level 3 Commc'ns, LLC, 456 F.3d 1215, 1218 (10th Cir. 2006) (internal
quotation marks omitted). If the adverse employment action was not “very closely
connected in time to the protected activity... the plaintiff must rely on additional evidence
beyond temporal proximity to establish causation.” Piercy v. Maketa, 480 F.3d 1192,
1198 (10th Cir. 2007) (quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179
(10th Cir. 1999) (internal quotation marks omitted). Plaintiff does not suggest other
causal factors, but instead generalizes that the “record shows a pattern of retaliation
very close in time” to plaintiff’s complaint. Dk. 99, p.42. The Court disagrees.
Denial of benefits
Plaintiff contends that she was denied benefits in retaliation for her sexual
harassment complaint, but the only benefit specifically addressed in the record is
plaintiff’s health insurance benefits. It is undisputed that defendant continued to make
these benefit contributions on behalf of the plaintiff throughout the time she was on
FMLA leave, i.e., until the end of January, 2009. Thereafter, plaintiff was not on FMLA
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leave but was on leave without pay until she returned to work in March of 2009. Plaintiff
admits that defendant told her that because of her LWOP status, she would be
responsible for paying for her health insurance and defendant would no longer pay the
employer’s share.
The Court assumes, arguendo, that non-payment of plaintiff’s health insurance
contributions constitutes adverse action. Nonetheless, no causal connection is shown.
Plaintiff’s health insurance contributions were paid until at least through the end of
January of 2009, six months after plaintiff filed her EEOC charge. Any change in
benefits thereafter is too remote to demonstrate a causal connection between the two
events, and no other causal connection is alleged.
Denial of seniority rights/post selection
Plaintiff contends that defendant retaliated against her by failing to notify her of a
post rotation roster circulation in February of 2009. Because she did not receive the
roster, she was deprived of the ability to state her post preference, so upon her return to
work in March of 2009 was relegated to work at whatever post was not selected by
others. The post that was left, the segregation post, was undesirable to the plaintiff and
to others.
The uncontested facts show the following. The corrections officers change posts
annually. Before the annual rotation occurs, a post rotation roster is circulated, and
employees are able to designate their preferences for the posts at which they desire to
work. A formula is used to determine an employee’s ranking for post rotation: points are
awarded for the employee’s length of service, positive performance reviews, and
experience, and points are deducted for reprimands and other disciplinary actions.
21
Those with the most points get to select their post first. Plaintiff received at least one
post rotation roster which was circulated when she was on FMLA leave, but did not
receive the post rotation roster which was circulated in February of 2009, after plaintiff’s
FMLA leave had expired. When plaintiff returned to work in March of 2009, she was
assigned to the segregation post which she would not have selected, and which some
other employees consider to be the most difficult or least desirable post in the facility.
Defendant contends that precluding plaintiff from stating a post preference is not
adverse action because post assignments do not change an officer’s job duties, title,
benefits, or salary. Dk. 105, p. 19-20. Defendant relies upon Piercy, 480 F.3d at 1203,
but that case applied the standard of adverse action for discrimination cases, instead of
the more lenient standard for retaliation cases, stated above. See Piercy, 480 F.3d at
1203, n.12. Plaintiff has presented testimony from other employees about the nature
and undesirability of the segregation post to which plaintiff was assigned after her return
to work, going beyond her mere subjective preference for another post. Accordingly, the
court assumes possible adverse action.
Nonetheless, no causal connection can be found based on the facts of record.
Plaintiff’s EEOC complaint (the latter of her complaints of sexual harassment) was
made on July 20, 2008. Defendant omitted plaintiff from the circulation of the post roster
beginning on February 8, 2009. Here, as above, the intervening period of over six
months is too long to independently support a finding of causation.
Demotion
Plaintiff contends that her demotion in August of 2009 was retaliatory. She
returned to work in March, and on June 18, 2009, had a “30 day feedback” in her new
22
position as a sergeant in segregation. During plaintiff’s probationary period, her
supervisor, Mr. Pettis, expressed concerns about her poor work performance. He then
conducted plaintiff’s Performance Appraisal on July 29, 2009, rated her performance as
“unsatisfactory,” and stated that permanent status was not recommended. By that date,
Officer Gamino had become plaintiff’s supervisor, and on August 1, 2009, he gave
plaintiff a scheduled review of her previous 30 days. His review expressed concerns
about plaintiff’s performance, but also stated that he had “utmost confidence that
[plaintiff] will strive forward in [her] career here at TCF.” Plaintiff appealed her
“unsatisfactory” performance appraisal. After an evidentiary hearing, the appeals board
upheld the rating of unsatisfactory and recommended demotion. Two days later,
Warden Koerner made the final decision to demote plaintiff to COI from COII.
Plaintiff’s unsatisfactory Performance Appraisal and her demotion thus occurred
over a year after she filed her sexual harassment complaint, and are too remote in time
to demonstrate any causal connection to it. Plaintiff did file a later EEOC charge of
retaliation on May 9, 2009, but even considering that act to be protected conduct,
plaintiff’s demotion on August 13, 2009, is not sufficiently close in time to raise an
inference of causation. See Richmond v. ONEOK, Inc.,120 F.3d 205, 209 (10th Cir.
1997) (three-month period, standing alone, is insufficient to establish causation);
Meiners v. Univ. of Kansas, 359 F.3d 1222, 1231 (10th Cir. 2004) (time period between
two to three months not sufficient alone to establish causation).
For all the reasons stated above, the record fails to reveal a genuine issue of
material fact regarding plaintiff’s claims of sexual harassment and retaliation.
IT IS THEREFORE ORDERED that defendant’s motion for summary judgment
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(Dk. 79) is granted, and that plaintiff’s motion for partial summary judgment (Dk. 90) is
denied.
Dated this 26th day of May, 2011.
s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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