Oldridge v. Wichita, Kansas, City of
Filing
89
MEMORANDUM AND ORDER granting 69 Motion for Summary Judgment. Signed by District Judge John W. Broomes on 5/10/2022. (ca)
Case 6:18-cv-01243-JWB Document 89 Filed 05/10/22 Page 1 of 23
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SARAH J. OLDRIDGE,
Plaintiff,
v.
Case No. 18-1243-JWB
CITY OF WICHITA, KANSAS,
Defendant.
MEMORANDUM AND ORDER
This matter is before the court on Defendant’s motion for summary judgment. (Doc. 69.)
The motion has been fully briefed and is ripe for decision. (Docs. 70, 73, 76, 78, 81, 82, 83, 84,
87, 88.) The motion is GRANTED for the reasons stated herein.
I.
Facts
The following statement of facts is taken from the parties’ submissions and the stipulations
in the pretrial order.
Factual disputes about immaterial matters are not relevant to the
determination before the court. Therefore, immaterial facts and factual averments that are not
supported by the record citations are omitted.
This action involves an employment dispute between Defendant City of Wichita, Kansas,
and Plaintiff Sarah Oldridge, who was previously employed as a lieutenant for the City of Wichita
Police Department (“WPD”).
The WPD employs 600 commissioned police officers and
management. The WPD command staff includes the chief of police, three deputy chiefs, the
executive officer, and commissioned officers holding the rank of captain. WPD maintains its own
internal investigations department called the Professional Standards Bureau (“PSB”). The PSB
manages investigations into officers that have been accused of violations of WPD policies. A
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complaint against an officer can be filed by another officer, a supervisor, or a citizen. When a
complaint is filed, PSB detectives conduct investigations and submit their findings to command
staff who ultimately determine whether the officer will be disciplined. (Docs. 70 at 2-3; 73 at 16.)
Plaintiff started her employment with the WPD as an officer in 1997 and resigned in June
2021. Oldridge was initially promoted to detective in 2003, sergeant in 2014, and then lieutenant
in 2015. According to Captain Germany, Plaintiff’s supervisor, Plaintiff performed well in her
position and received great reviews from the community. In early 2018, WPD had openings for
the position of captain. At that time, there were approximately 30 lieutenants at WPD and Plaintiff
was the only female. When an applicant applied for the captain position, the application was
submitted online on the City of Wichita’s Neogov portal. According to the stated requirements
for the position, an applicant had to have one year of experience in the rank of lieutenant.1 In
completing the online application, the applicant was required to certify that he or she met the stated
requirements. On March 5, 2018, Plaintiff applied for the captain position and certified that she
had the requisite experience. On March 8, 2018, Chief Gordon Ramsay sent an anonymous survey
in order to obtain feedback from the police department regarding the candidates for the positions.
Plaintiff began asking questions regarding the role of the survey in the promotions. (Docs. 70 at
4-5; 73 at 3, 5, 16; 78 at 5.)
On March 12, 2018, Plaintiff emailed Triniece Robertson at the City’s human resources
department (“March 12 email”) with eight bullet point questions about how the survey would be
used. Plaintiff stated that she was not aware that a survey of department members would be utilized
and she wanted to ensure a “fair and consistent process for all candidates.” (Doc. 76-3.) Plaintiff
1
This requirement was modified in 2019 so an applicant could certify that he or she would have one year experience
“by the time of promotion.” (Docs. 73 at 5; 78 at 5.) The application exhibits provided to the court erroneously
contain that language although the parties agree that the language was not in the application for the captain position
at issue. (See Doc. 87-4 at 3.)
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asked how the survey results would factor into the overall assessment, how the rankings would be
used, and what percentage of the overall scoring of candidates will be comprised from the survey
results.
Plaintiff also asked “How will this survey filter out personal or other bias from
respondents?” (Id.) In response, Plaintiff was told that she should refer her questions or concerns
to Chief Ramsay because he had sent the information. (Doc. 76-4.) Plaintiff then forwarded the
email to Chief Ramsay and asked for clarification on the process and her questions. Chief Ramsay
asked Captain Germany, Plaintiff’s supervisor, to meet with Plaintiff and discuss his response.
Ramsay told Germany to relay to Plaintiff that he was seeking input from the members of the WPD
regarding the candidates because “one of the issues that has been brought to my attention from
members of the Department is the lack of input that many of them perceive that they have.” (Doc.
76-5.) Ramsay valued their additional input because his “historical knowledge of the candidates
is comparatively brief.” (Id.) Captain Germany then met with Plaintiff and summarized what
Chief Ramsay had told him. Captain Germany admitted that Chief Ramsay did not provide a direct
response to Plaintiff’s question regarding bias. (Germany Depo., Doc. 76-1 at 80:17-81:14.) He
further admitted that most of her questions were not answered. (Docs. 73 at 10; 78 at 8.)
The City of Wichita coordinated a panel interview process for all of the applicants. On
March 16, 2018, the eleven applicants were interviewed by a panel of four individuals; only one
of those individuals was employed by the WPD - Captain Pinkston, Administrative Services
Bureau Commander. The panel members asked the same questions of each applicant and then
scored each applicant on a score sheet. (Doc. 87-2.) After the interviews by the panel, Plaintiff
was ranked 8th out of the 11 applicants. (Doc. 87-3.) On April 10, 2018, Plaintiff was informed
by Chief Ramsay that she did not score high enough in the panel interviews to move on to the next
round. (Doc. 83-5.) Notably, the letter stated that the “first phase scoring was based solely on the
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panel interview” and that “upon review of the scores you did not score high enough to move to the
next phase.” (Id.) The final round of interviews included the top four applicants.2 Those
interviews were conducted by Chief Ramsay and his deputies. Chief Ramsay promoted two men
to captain on May 5, 2018. One of the men promoted, Wendell Nicholson, did not have a year of
experience as a lieutenant at the time his application was submitted but he did have a year in rank
at the time the promotion occurred. Although Nicholson did not meet the year of experience
requirement at application, he did have more seniority than Plaintiff at WPD, additional higher
education, and scored higher than Plaintiff on the panel interview. (Docs. 70 at 5-6; 73 at 5, 16.)
On May 9, 2018, Plaintiff sent an email (“May 9 email”) with multiple questions to Chris
Bezruki, the City HR Director. Plaintiff also carbon copied (“cc’d”) the following individuals:
Triniece Robertson (City HR Specialist), Susan Leiker (City HR EEO investigator), Chief Ramsay,
Deputy Chief Troy Livingston, Captain Germany, Captain Chester Pinkston, City Attorney
Jennifer Magana, Deputy City Attorney Sharon Dickgrafe, Dan Giroux (Plaintiff’s personal
counsel), City Manager Robert Layton, and all 28 WPD officers holding the rank of Lieutenant.
(Doc. 83-4.) The May 9 email detailed that Plaintiff had previously sent her March 12 email to
Chief Ramsay with questions about the survey but that she did not get a response from the chief.
Plaintiff detailed her discussion with Captain Germany regarding the survey and that she was
informed that the survey “allowed the chief to gain information about the candidates which the
2
Plaintiff attempts to controvert Defendant’s fact regarding the objective process of the panel by stating that Ramsay
did not have to follow the recommendations, an unqualified male was promoted, Ramsay met with the panel prior to
the interview, and multiple witnesses provided false testimony. (Doc. 73 at 16-17.) None of these assertions, however,
controverts the facts regarding the process. Although Ramsay may have had the ultimate decision, the uncontroverted
facts are that the individuals who were ranked in the top four by the panel were the only individuals considered by
Ramsay. Moreover, the panel had all of the information regarding the applicants’ records, including the applicants’
time in rank. Also, Plaintiff has failed to introduce any evidence showing that Ramsay said anything about the
applicants to the panel prior to the interviews. With respect to alleged false information, the cited paragraphs do not
have anything to do with the interview process by the panel. Therefore, Plaintiff has not controverted Defendant’s
facts regarding the panel interview process and Plaintiff’s ranking after that interview.
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respondents may not feel comfortable sharing during a face-to-face conversation.” (Id. at 1.)
Plaintiff stated that Captain Germany did not provide any information regarding all of the
questions that she asked. Plaintiff then received a letter stating that she would not be progressing
to the next level of the captain’s promotional process. Plaintiff then reviewed the qualifications
required for the captain position, including the requirement of one year at the rank of lieutenant.
Plaintiff then asked several questions regarding the process:
Given the application would be disqualified without an attached resume, does
HR disqualify an application which does not meet the minimum job
requirements?
How was the resume utilized since it was not provided to the interview panel
members for review?
Is the last line of the job posting (“An equivalent combination of experience
and training may be considered”) intended to supplement the minimum
requirements?
If not intended to supplement the minimum requirements, is the “equivalent
combination of experience and training” used in lieu of the minimum job
requirements?
If used in lieu of the minimum job requirements, what constitutes “equivalent
combination of experience and training” as it pertained to the recent
promotional process for the rank of Police Captain?
(Id. at 2.)
Plaintiff explained in her email that her questions were asked because one lieutenant
participant did not meet the minimum requirement for time in rank. Although Plaintiff did not
identify Nicholson by name, it was clear that she was speaking of Nicholson based on the dates
provided and the identification of this candidate as being promoted to captain. Although Plaintiff’s
supervisors agreed that Plaintiff could ask questions regarding the process, Chief Ramsay and
other supervisors testified that the May 9 email was inappropriate as Plaintiff deviated from the
chain of command in sending the letter to all the 28 lieutenants and other recipients. (Docs. 70 at
8; 73 at 19.) Plaintiff testified that she included all of the lieutenants in the email because they
“are stakeholders” and she felt they should all understand how the process was supposed to work.
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(Oldridge depo., Doc. 76-8 at 278:20-279:4.) The May 9 email does not include the question
regarding “bias” that had previously been submitted to Chief Ramsay on March 19, 2018.3
After becoming aware of the email, Nicholson was upset due to Plaintiff’s attack on his
qualifications for captain. Nicholson forwarded the email to his wife and friends. Deputy Chief
Givens also sent Plaintiff’s email to her spouse and friends. (Docs 70 at 10; 73 at 19-20.)
On May 14, 2018, Deputy Chief Livingston initiated a complaint against Plaintiff for
conduct unbecoming an officer based on the May 9 email. (Doc. 83-11.) Plaintiff allegedly
violated regulation 3.201 D, which includes conduct that brings WPD “into disrepute, or reflects
discredit upon the officer as a member of the Department, or that which impairs the operation or
efficiency of the Department or officer.” (Doc. 88-1 at 1.) The WPD’s policy manual details the
department’s regulations pertaining to professional conduct. (Doc. 70-26.) The regulations
include a penalty category based on a seriousness level of A through F, with F being the most
serious. (Docs. 73 at 7; 78 at 5.) Plaintiff was charged with a category D violation. (Doc. 88-1 at
1.) The complaint summary states “Per Deputy Chief Livingston, an internal investigation on Lt.
Sarah Oldridge will be initiated based on her conduct via a series of e-mails that started with her
response to the subject matter ‘DC Seilier Retirement and Survey.’ The Survey was in regards to
[deputy chief] and captain candidates. The e-mail was sent to all the police lieutenants, several
persons in HR, City Law, and the City Manager. The e-mail was also sent to what appears to be
an attorney outside of the WPD.” (Doc. 83-11 at 1.) After receiving the complaint, Detective
Doshier conducted an investigation that spanned several months. (Doc. 88-1.) In investigating
3
Plaintiff objected to Defendant’s proposed statement of fact that the email did not include any reference to bias.
(Doc. 73 at 19.) Plaintiff stated that the email specifically asked how the anonymous survey would “filter out bias.”
Id. The May 9 email, however, does not include that question. Reviewing the exhibit, Plaintiff refers to her
unanswered questions to Chief Ramsay but the email does not include all of the questions from her March 12 email.
(Doc. 83-4.) The last page of the exhibit shows the heading of an email sent on April 4, 2018, to Chief Ramsay, but
the text of the email is not included. In controverting the proposed fact, Plaintiff does not cite to a different exhibit.
Therefore, the court is unable to conclude that the May 9 email did in fact include the question regarding “bias.”
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the complaint, Doshier and Captain Moore interviewed 47 witnesses, including witnesses who
were not recipients of the email. Detective Doshier prepared a report regarding the investigation
comprised of 191 pages. Detective Doshier testified that she modeled her investigation after one
that was undertaken for a similar complaint regarding an email sent by an officer referred to as
Sergeant X.4 She further testified that Nicholson’s dates regarding his time as a lieutenant were
not a concern for her in conducting the investigation. The report notes that Nicholson had
challenged the dates Plaintiff identified in the May 9 email. (Docs. 73 at 10; 78 at 8.) The report
states that it “was determined that Captain Nicholson’s dates are his ‘promotion dates’ and
Lieutenant Oldridge had referenced his ‘effective dates’” in her email. (Doc. 88-1 at 33.) In any
event, it is undisputed that Nicholson had not been in the position of lieutenant for one year at the
time of his application.
During the investigation, witnesses were asked whether they would have sent an email
similar to the one Plaintiff sent. Almost all of the witnesses responded that they would not.
Plaintiff takes issue with the question posed to the witnesses because she believes that they were
not provided with the full circumstances surrounding the email, such as HR instructing her to ask
Chief Ramsay, that City Manager Layton testified that the questions should be answered, and that
her concerns regarding the time in rank were correct. Plaintiff asserts that the witnesses may have
responded differently had they been provided additional information. (Docs. 73 at 10-11; 78 at 8.)
The report also provides significant detail regarding the investigation, including specific
responses from various witnesses. The report extensively discusses the survey, Plaintiff’s belief
that the hiring process was discriminatory, and includes various opinions from officers as to
whether Plaintiff’s email was an EEO complaint. Notably, neither party defines an EEO complaint
4
The parties are not utilizing the officer’s name for privacy concerns. The court has previously allowed the records
regarding Sergeant X’s discipline to be filed under seal. (Doc. 80.)
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but it appears to be an internal complaint with the City. (Docs. 70 at 8; 73 at 28; 88-1 at 21.)5
Both Plaintiff and Defendant cite to various statements by witnesses concerning the propriety of
Plaintiff’s conduct and the intent of the email. Some witnesses felt that the conduct did not deserve
an investigation while most witnesses thought that the email should not have been sent to all of
the recipients. (Docs. 73 at 14-15; 78 at 8-9.)
On December 11, 2018, after being interviewed by Detective Doshier with PSB, Nicholson
and Givens received “coaching/mentoring” and no disciplinary action for their actions in
forwarding Plaintiff’s email to several individuals, including those outside of the WPD and City
of Wichita. (Docs. 82-2; 82-4.) The coaching form states that Doshier met with Nicholson and
Givens and told them that forwarding the e-mail outside of the agency was not acceptable. (Id.)
On December 26, 2018, although Plaintiff was initially charged with a category D
violation, Chief Ramsay sustained the complaint for conduct unbecoming an officer under
Regulation 3.204 (C) and issued discipline in the form of a 1-day suspension. (Docs. 70 at 10; 73
at 20; 83-9.) Plaintiff alleges that the investigation and suspension was in retaliation for protected
conduct. In response, Defendant argues that the investigation and discipline were not retaliation,
that Plaintiff violated the regulation, and that Plaintiff received similar discipline to Sergeant X.
In 2016, Sergeant X sent an email to members of his SWAT team, his subordinates, and
his supervisor expressing anger about Chief Ramsay’s decision to remove this officer from the
SWAT team. Sergeant X was alleged to have violated Regulation 3.204 (C) pertaining to conduct
unbecoming an officer, which states that “each member of the Department shall contribute his/her
part in maintaining Departmental integrity, order, and discipline.” (Doc. 84-3 at 1.) The
5
There are also no facts as to what conduct is covered by an EEO complaint. Plaintiff has described the WPD’s
discrimination policy as “a failure to treat all persons equally where there is no reasonable distinction...between those
favored and not favored.” (Doc. 88-1 at 145.) This appears to be consistent with the definition of discrimination
contained in the report and taken from “Policy 207 Equal Employment Opportunity.” (Id. at 186.)
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investigation by PSB involved an interview of Sergeant X and a review of the records. Following
an investigation, Sergeant X was issued discipline in the form of a 1-day suspension. The report
detailing the investigation was ten pages long. (Id.) After being informed of his discipline,
Sergeant X filed a grievance. The discipline was reduced to a written reprimand after the grievance
procedure. (Doc. 84-4.)
On May 30, 2018, Plaintiff filed a charge with the Equal Employment Opportunity
Commission raising gender discrimination and retaliation related to the failure to promote her to
captain. (Doc. 76-16.) Specifically, Plaintiff alleged that a lesser qualified male was promoted to
captain after she questioned the WPD’s promotion procedure. Plaintiff stated that she was
informed on May 15, 2018, that she was being investigated after she sent the May 9 email. Plaintiff
believed that she was denied a promotion because of her sex and that she was disciplined in
retaliation for complaining about a violation of Title VII. (Id.) On June 1, 2018, the EEOC issued
a notice to sue letter and dismissed her complaint. (Doc. 76-17.)
On March 7, 2019, Plaintiff filed another charge raising a claim of retaliation. (Doc. 7618.) On February 22, 2021, the Kansas Human Rights Commission issued a right to sue letter.
(Doc. 76-19.) A pretrial order was entered in this case on July 26, 2021. (Doc. 62.) According to
the pretrial order, Plaintiff has alleged two claims under both Title VII, 42 U.S.C. § 2000e and the
Kansas Act Against Discrimination (“KAAD”), K.S.A. 44-1001.
Those include gender
discrimination due to the denial of her promotion to captain and retaliation after engaging in
protected activity. Defendant City of Wichita has moved for summary judgment on both claims.6
6
Notably, although both theories are set forth in the pretrial order, Plaintiff’s brief states that this is a Title VII action
and does not address her KAAD claims. (See Doc. 73 at 1.) Defendant has moved for summary judgment on all
claims. (Doc. 70.) The Tenth Circuit has held that the same standard applies to Title VII and KAAD discrimination
claims and neither party suggests that the KAAD claims are analyzed under a different standard. Singh v. Cordle, 936
F.3d 1022, 1037 (10th Cir. 2019). Therefore, the court will analyze the claims under Title VII throughout this order.
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II.
Standard
Summary judgment is appropriate if the moving party demonstrates that there is no genuine
dispute as to any material fact, and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). A fact is “material” when it is essential to the claim, and the issues of fact are
“genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's
favor. Haynes v. Level 3 Commc'ns, 456 F.3d 1215, 1219 (10th Cir. 2006). The movant bears the
initial burden of proof and must show the lack of evidence on an essential element of the claim.
Thom v. Bristol—Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986)). The nonmovant must then bring forth specific facts
showing a genuine issue for trial. Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005).
Conclusory allegations are not sufficient to create a dispute as to an issue of material fact. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court views all evidence and
reasonable inferences in the light most favorable to the nonmoving party. LifeWise Master
Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
III.
Analysis
A.
Gender Discrimination
Plaintiff claims that Defendant is liable for gender discrimination after she was denied the
promotion to captain and an allegedly unqualified male was promoted instead.7 Plaintiff asserts
that her gender was a motivating factor in the decision not to promote her. (Doc. 62 at 13-14.)
When a plaintiff does not offer direct evidence of discrimination, as in this case, her claim of
gender discrimination is evaluated under the McDonnell Douglas Corp. v. Green, 411 U.S. 792,
7
Defendant generally refers to allegations of gender discrimination contained in Plaintiff’s amended complaint and
asserts that they fail to establish a basis for a Title VII claim. (Doc. 78 at 13.) At this stage of the proceeding, the
pretrial order controls. D. Kan. R. 16.2(b). According to the pretrial order, Plaintiff’s claim of gender discrimination
is based on a failure to promote. (Doc. 62 at 13.)
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804, 804 (1973), burden shifting framework. Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir.
2013). Plaintiff carries the initial burden of establishing a prima facie case although the burden is
not onerous at this stage. Id. To state a prima facie case of discrimination, Plaintiff must
demonstrate by a preponderance of the evidence that “(1) she belongs to a protected class; (2) she
applied for an available position for which she was qualified; (3) she ‘was rejected under
circumstances which give rise to an inference of unlawful discrimination.’” Id. (quoting Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). See also id. at n. 4 (discussing the
Tenth Circuit’s preference for the three part test set forth in Burdine instead of the older four part
test). If Plaintiff states a prima facie case, the burden shifts to Defendant to proffer “a legitimate
non-discriminatory purpose for the adverse employment action.” Id. at 1216-17 (citation omitted).
If Defendant puts forth this evidence, “Plaintiff will avoid summary judgment only if she shows
her sex ‘was a determinative factor in the ... employment decision, or show[s] the [employer's]
explanation for its action was merely pretext.’” Id. (quoting E.E.O.C. v. Horizon/CMS Healthcare
Corp., 220 F.3d 1184, 1191 (10th Cir. 2000)). A plaintiff shows pretext by demonstrating “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 employer did not act for the asserted
nondiscriminatory reasons.” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167
(10th Cir. 2007).
Here, Defendant argues that Plaintiff has failed to meet her minimal burden of establishing
a prima facie case because Defendant utilized an objective procedure in the application process
and Plaintiff simply did not make the cut. In response, Plaintiff argues that she is able to meet her
initial burden because Nicholson was promoted even though he lied (according to Plaintiff) on his
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application regarding his experience and he did not meet the published one-year experience
requirement as a lieutenant. In reply, Defendant asserts that Nicholson’s certification on his
application regarding his experience is not evidence of gender discrimination as the interview
procedure was entirely objective and Plaintiff has no evidence that any panel member’s decision
was motivated by sex.
Plaintiff’s burden here is minimal but she must show that she was rejected under
circumstances that give rise to an inference of unlawful discrimination. Plaintiff’s evidence at this
stage does not meet that standard. Even if it did, Defendant has offered a legitimate nondiscriminatory purpose for failing to promote Plaintiff — she did not fall within the top four
applicants after being ranked by the panel members during the objective interview process — and
Plaintiff has not shown that the explanation is a pretext for discrimination.
Plaintiff spends considerable time arguing that the fact that a male lieutenant received the
promotion instead of her when he did not have the requisite time in rank of lieutenant is evidence
of discrimination and pretext. Plaintiff ignores, however, that the interview process included a
panel of individuals who interviewed each applicant and then ranked those applicants using various
factors. Moreover, although Plaintiff complained about the use of the survey in the hiring process,
there is no evidence that the survey sent out by the Chief was used by the panel in ranking the
applicants. Plaintiff sets forth no facts to suggest that anything about the panel interview process
was tainted with discrimination.8 Notably, the materials provided to the panel members included
information concerning each applicant’s record. With respect to Nicholson, the time in rank for
8
Plaintiff suggests that Chief Ramsay somehow tainted the process when he met with the panel prior to the interviews
by voicing his preferences. (Doc. 73 at 17.) The exhibit Plaintiff cites in support of this statement simply states that
Chief Ramsay met with the panel. (Doc. 76-20.) Plaintiff’s assertion as to what occurred during this time period is
pure speculation.
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each position is detailed, including the date of Nicholson’s promotion to lieutenant and that he had
“11 mos” of time in that rank. (Doc. 87-1 at 9.)
Plaintiff urges the court to find that Defendant’s actions here in promoting Nicholson over
Plaintiff was discriminatory and that Defendant’s reason was pretext for discrimination. A judge’s
role “is to prevent intentional discriminatory hiring practices, not to act as a ‘super personnel
department,’ second guessing employers' honestly held (even if erroneous) business judgments.”
Hamilton v. Okla. City Univ., 563 F. App'x 597, 604 (10th Cir. 2014) (citation omitted). Courts
are to proceed with caution when considering the merits of candidates for employment. Id. at 602
(citing Jaramillo v. Colo. Judicial Dep't, 427 F.3d 1303, 1308 (10th Cir.2005) (per curiam)). A
court can “draw an inference of pretext where the facts assure us that the plaintiff is better qualified
than the other candidates for the position.” Id. (quoting Santana v. City & Cnty. of Denver, 488
F.3d 860, 865 (10th Cir. 2007)). But “minor differences between a plaintiff's qualifications and
those of a successful applicant are not sufficient to show pretext.” Id. (quoting Jaramillo, 427 F.3d
at 1308–09).
Here, Plaintiff has not shown that she is better qualified than the other candidates, or
specifically Nicholson, for the position of captain. Although Plaintiff had been in the position of
lieutenant for more than two years, she did not have the same number of years of experience as
Nicholson. Notably, Nicholson also had a master’s degree in criminal justice in comparison to
Plaintiff’s bachelor’s degree in criminal justice. (Doc. 87-1 at 9.) Nicholson also scored higher
than Plaintiff in the panel interviews. After the interviews, the panel members scored each
applicant on oral communication, planning and organization, problem solving, job/technical
knowledge, judgment, leadership, and overall impact. (Doc. 87-2.) These scores were based on
questions uniformly asked of all applicants. (Doc. 87-1.) Plaintiff has not shown pretext based
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on Nicholson’s qualifications. See Petersen v. Utah Dep't of Corr., 301 F.3d 1182, 1190–91 (10th
Cir. 2002) (finding that there was no evidence of pretext when the plaintiff’s evaluation score was
seventh among the applicants) (citing Bullington v. United Air Lines, Inc., 186 F.3d 1301, 131718 (10th Cir. 1999) (a plaintiff’s own opinions regarding her qualifications do not give rise to a
dispute of material fact regarding pretext).
Plaintiff further argues that the court can infer discrimination because Nicholson was not
disciplined after certifying that he had one year of experience on his application. Plaintiff asserts
that this conduct is subject to discipline. There is no indication, however, that a complaint was
ever filed against Nicholson or that any command staff believed that Nicholson’s statement would
subject him to discipline. Rather, Captain Pinkston testified that Nicholson “would meet the
qualification” prior to the promotion. (Pinkston Depo., Doc. 70-12 at 49:1-9.) Moreover, as noted
previously, the panel was aware that Nicholson only had 11 months of time as lieutenant at the
time of the interviews. Defendant’s failure to strictly enforce the one-year requirement that was
in the application, in and of itself, does not evidence pretext for discrimination in light of the
objective process of the panel interviews for the promotion. It is clear from the ranking of the
individuals by the panel that Plaintiff still would not have moved on in the interview process even
if Nicholson’s application could not have been considered.
Plaintiff also argues that Defendant’s treatment of her following the May 9 email is
evidence of pretext. Plaintiff’s argument ignores the application process for the promotion.
Although conduct subsequent to the failure to promote could establish pretext in certain cases,
Defendant’s reason for failing to promote Plaintiff was because she did not rank high enough to
move on in the process after the panel interviews. Plaintiff’s arguments regarding her May 9 email,
investigation, and discipline, do not evidence that Defendant’s proffered reason is pretext for
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discrimination in light of the objective process of the panel interviews and the fact that the ranking
of the applicants occurred weeks before those events.
Plaintiff also argues that the difference in treatment pertaining to the internal investigation
and discipline between her and Sergeant X is evidence of pretext. Although it is apparent that
there were differences in the scope of the investigation and Sergeant X was able to reduce his
discipline through the grievance procedure, Plaintiff fails to show how this difference of treatment,
which occurred after the hiring process and involved a disciplinary procedure, shows that
Defendant’s stated reason for its employment decision was pretext for gender discrimination.9 The
hiring process involved a panel ranking the applicants and only the top four applicants continued
on in the process; Plaintiff offers no evidence that any part of the panel process was tainted by
discriminatory bias.
Although Nicholson did not have one year of experience as lieutenant at the time of
application and Plaintiff was subjected to an investigation and discipline regarding her May 9
email, Plaintiff has not established that Defendant’s reason for failing to promote Plaintiff is a
pretext for discrimination. Therefore, Defendant’s motion for summary judgment on Plaintiff’s
claim of gender discrimination is granted.
B.
Retaliation
9
Plaintiff’s argument regarding pretext appears to apply to both her gender discrimination and her retaliation claim.
(Doc. 73 at 25.) While this argument concerning Sergeant X would be relevant to an argument regarding pretext with
respect to her retaliation claim, it is difficult to tie this argument to evidence of pretext with respect to the gender
discrimination claim. In the context of pretext, differential treatment is when a plaintiff “demonstrates that the
employer treated [the plaintiff] differently from other similarly-situated employees who violated work rules of
comparable seriousness in order to show that the employer failed to follow typical company practice in its treatment
of the plaintiff.” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167–68 (10th Cir. 2007). Here, the
alleged differential treatment does not involve past practices concerning the promotional process. Therefore, the
alleged differential treatment regarding discipline on a single occasion does not support the conclusion that the
decision regarding the promotion was pretext for discrimination.
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Next, Plaintiff alleges that Defendant retaliated against her for engaging in protected
activity. Like the gender discrimination claim, Plaintiff is proceeding under the burden-shifting
framework in McDonnell Douglas to establish her retaliation claim. Under that framework,
Plaintiff must first establish a prima facie case of retaliation by showing 1) that she engaged in
protected opposition to discrimination, 2) “that a reasonable employee would have found the
challenged action materially adverse,” and 3) “that a causal connection exists between the
protected activity and the materially adverse action.” Hansen v. SkyWest Airlines, 844 F.3d 914,
925 (10th Cir. 2016) (quoting EEOC v. PVNF, L.L.C., 487 F.3d 790, 803 (10th Cir. 2007)). After
establishing her prima facie case, the burden shifts to Defendant “to come forward with a
legitimate, non-retaliatory rationale for the adverse employment action. If the defendant does so,
the plaintiff must show that the defendant's proffered rationale is pretextual.” Id. (quoting Lounds
v. Lincare, Inc., 812 F.3d 1208, 1234 (10th Cir. 2015)). Pretext can be shown by providing direct
evidence discrediting the proffered rationale, that Plaintiff was treated differently from other
officers who were similarly situated, or it can be inferred “from evidence revealing ‘weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” in Defendant’s explanation. Id.
Defendant moves for summary judgment on the basis that Plaintiff’s emails were not
protected activity; Plaintiff did not sustain an adverse employment action; and that Plaintiff has
not shown that there is any causal connection between the protected activity of filing an EEOC
charge and an adverse action. In response, Plaintiff argues that the emails were protected activity,
she has established a prima facie case of retaliation, and evidence of pretext.
1.
Protected Activity
Plaintiff must meet an initial hurdle of showing that she engaged in protected activity. To
engage in protected opposition to discrimination, Plaintiff must oppose an employment practice
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made unlawful by Title VII. Faragalla v. Douglas County Sch. Dist. RE 1, et al., 411 F. App’x.
140, 148 (10th Cir. 2011). Title VII makes it unlawful for an employer “to discriminate against
any individual ... because of such individual's race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1).
A plaintiff therefore engages in protected activity if she opposes
employment discrimination based on one of these protected categories. McDonald-Cuba v. Santa
Fe Protective Servs., Inc., 644 F.3d 1096, 1102 (10th Cir. 2011) (“Protected activity consists of
activity opposing or complaining about discrimination by the employer based on race, color,
religion, gender, or national origin.”); Faragalla, 411 F. App’x. at 148. The filing of a formal
charge constitutes protected activity as well as voicing informal complaints to superiors. E.E.O.C.
v. PVNF, L.L.C., 487 F.3d 790, 804 (10th Cir. 2007) (citing Hertz v. Luzenac America, Inc., 370
F.3d 1014, 1015 (10th Cir. 2004)). “Although no magic words are required, to qualify as protected
opposition the employee must convey to the employer his or her concern that the employer has
engaged in a practice made unlawful by [Title VII].” Hinds v. Sprint/United Mgmt. Co., 523 F.3d
1187, 1203 (10th Cir. 2008). A “vague reference to discrimination...without any indication that
this misconduct was motivated by [a] category protected by Title VII[] does not constitute
protected activity and will not support a retaliation claim.” Anderson v. Acad. Sch. Dist. 20, 122
F. App'x 912, 916 (10th Cir. 2004).
Turning to the complaints at issue, Plaintiff argues that the following emails were protected
activity: her March 12, 2018, email to Triniece Robertson with questions regarding the survey; her
March 19 and April 4 emails to Ramsey, Germany, Livingston, and Chris Bezruki in which she
forwarded the HR email regarding the survey and sought a response from Ramsey; her May 9
email to Bezruki and numerous recipients in which she complained that she had never received a
response from Ramsey and complained about the promotion of Nicholson.
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First Three Emails. The first three emails were substantively identical so those will be
addressed together. In those first three emails, Plaintiff asked several questions regarding the
purpose of the survey in the hiring process. Plaintiff argues that these emails constitute protected
activity because she complained about bias in the procedure asking “how will this survey filter out
personal or other bias from respondents?” (Doc. 76-3.) Defendant argues that this question is not
sufficient to constitute protected activity because it only used the term “bias” and did not complain
about gender bias. In her brief, Plaintiff does not explain how the use of the term “bias” puts
Defendant on notice that she is complaining about a practice made unlawful by Title VII.
In order to be protected activity, Plaintiff must convey a concern that her employer engaged
in unlawful discrimination under Title VII. Plaintiff’s vague reference to “bias” is not sufficient.
The Tenth Circuit has repeatedly held that vague assertions of discrimination or harassment are
not sufficient and that the statute requires more. See, e.g., Lamb v. Montrose Cty. Sheriff's Off.,
No. 19-1275, 2022 WL 487105, at *4 (10th Cir. Feb. 17, 2022). Rather, there must be “some
perceptible connection to the employer's alleged illegal employment practice,” and “it must be
possible to discern from the context of the statement that the employee opposes an unlawful
employment practice.” Id. (quoting Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc.,
450 F.3d 130, 135 (3d Cir. 2006)). Here, Plaintiff merely asked how the survey would filter out
personal or other bias from the respondents. Viewing the emails in a light most favorable to
Plaintiff, it is not possible to discern that Plaintiff is stating that Defendant has engaged in gender
discrimination by utilizing the survey or due to questions that are included in the survey. Rather,
Plaintiff could be complaining about any type of bias.
Plaintiff offers no authority in support of her position that this question complains about
an unlawful employment practice. Bias is defined as: “A mental inclination or tendency; prejudice;
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predilection.” Bias, Black's Law Dictionary (11th ed. 2019). Based on its definition, although a
personal bias could be due to gender or race, it is not limited to those categories. It could simply
be due to a personal hostility towards a person based on a past relationship, such as witness being
biased toward one party in a case.
The court finds that these emails do not constitute protected activity as they cannot be read
to complain about unlawful discrimination in violation of Title VII. See Anderson, 122 F. App’x
at 916 (vague reference to discrimination does not constitute protected activity); Faragalla, 411
F. App’x at 148 (complaint of discriminatory and retaliatory conduct insufficient because there
was no reference to a protected category); Petersen, 301 F.3d at 1188.
May 9 Email. Next, Plaintiff argues that her May 9 email constitutes protected activity.
The May 9 email is addressed to Chris Bezruki in HR and cc’d to Ramsay, Livingston, Germany,
attorneys for the City of Wichita, Plaintiff’s personal attorney, the City Manager, and all the WPD
Lieutenants. In the email, Plaintiff informs Bezruki about her previous emails in which she
questioned the survey utilized in the process but did not get a sufficient response. Plaintiff states
that she has been notified that she will not continue on in the hiring process, but that she still wants
answers to her original questions and now has additional questions. Plaintiff then sets forth the
HR job description for captain and the requirement about time in rank noting that the description
did provide that “an equivalent combination of experience and training may be considered.” (Doc.
83-4 at 1.) Plaintiff asks several questions about the requirements, including whether an applicant
would be disqualified if he or she did not meet the minimum job requirements or if the statement
regarding equivalent combination could supplement the minimum requirements. Plaintiff then
explains that she was asking those questions because a lieutenant who participated in the process
and was going to be promoted to the rank of captain (Nicholson) did not meet the minimum
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requirement of time in rank. Further, another lieutenant, who did meet the minimum requirement
of time in rank but did not meet the educational requirement, was “denied the opportunity to
participate in the process.” (Id. at 2.) Plaintiff stated that her “inquiry involves no ill will toward
any lieutenant who participated in the process. It is not intended to disparage anyone but to clarify
expectations and advocate for improvement of disparities, transparency in the process, equal
opportunity, consistency and fairness for all current and applicants who participate in the
promotional process.” (Id.)
Plaintiff argues that her May 9 email constitutes protected activity because she complained
about a male being selected over her, she included her attorney on her email, and because some
individuals employed by Defendant interpreted it as protected activity. Contrary to Plaintiff’s
position, however, her May 9 email does not express that she is opposing an unlawful employment
practice.
Initially, although Plaintiff argues that her email complains about a male being selected
instead of a female, her email cannot be read so liberally. Rather, Plaintiff’s emails include general
complaints about the entire process. Plaintiff complains that her previous emails were ignored by
Ramsay; but again, those emails did not oppose an unlawful employment practice nor did they
contend that she was discriminated against due to her gender and Plaintiff does not suggest in the
May 9 email that Ramsay has ignored her or mistreated her because she is a woman. Plaintiff also
complains that Nicholson (Plaintiff does not refer to him by name in the email) was promoted in
the process even though he did not have the requisite time in rank. Plaintiff, however, does not
assert that he was promoted because he is a man nor does she state that she was not selected
because she is a woman. Rather, Plaintiff complains that this selection was unfair because another
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man was unable to apply even though he did not meet the minimum qualifications.10 Reviewing
the email in a light most favorable to Plaintiff, the email simply complains about the process and
Ramsay’s lack of response to her questions without any indication that Plaintiff believes that these
actions were taken because she is a woman. “[A]n employee's complaints regarding unfair
treatment, no matter how unconscionable, cannot be ‘protected opposition to discrimination’
unless the basis for the alleged unfair treatment is some form of unlawful discrimination in
violation of Title VII.” Faragalla, 411 F. App’x at 148.
Plaintiff also asserts that an “attorney letter” can be protected activity and cites to O'Neal
v. Ferguson Const. Co., 237 F.3d 1248 (10th Cir. 2001). While that case stands for the proposition
that an attorney can engage in protected activity on behalf of his client, that is not what occurred
here. Moreover, in O’Neal, it was clear that the letter was protected activity in that the attorney
complained about a retaliatory transfer after his client filed an EEOC charge. O’Neal, 237 F.3d at
1251-52. In Plaintiff’s May 9 email, there is no reference to gender discrimination. Although
Plaintiff is a female and Nicholson is a male, Plaintiff does not assert in the May 9 email that there
was unlawful discrimination in the hiring process as discussed above.
Plaintiff also cites to Nguyen v. Gambro BCT, Inc., 242 F. App'x 483, 491 (10th Cir. 2007)
for the proposition that “an employee’s notification to her employer that she has retained an
attorney due to discrimination is protected activity.” (Doc. 73 at 25-26.) In Nguyen, the court of
appeals affirmed the trial court’s grant of summary judgment and determined that the plaintiff did
not tell her employer about hiring an attorney prior to her termination. Therefore, her firing was
10
Plaintiff suggests that this is also protected activity because she is complaining about discrimination on behalf of
this lieutenant. (Doc. 73 at 29.) But Plaintiff makes no attempt to explain how this is the result of unlawful
discrimination as both lieutenants were men. Moreover, the email makes no mention of any unlawful employment
practice.
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not retaliatory for this statement. Nguyen is not persuasive here as Plaintiff’s email does not state
that she is hiring an attorney due to discrimination by her employer.
Finally, Plaintiff argues that the May 9 email is protected activity because certain recipients
interpreted the email as a complaint of illegal discrimination. (Doc. 73 at 28.) Plaintiff, however,
fails to cite authority to show that this is sufficient where the underlying email does not constitute
protected activity. Additionally, Plaintiff fails to identify any recipient who interpreted her email
as a complaint of an unlawful employment action based on gender discrimination or other unlawful
discrimination under Title VII11 and there is no indication that these individuals were
decisionmakers with respect to the ongoing disciplinary investigation. See Petersen, 301 F.3d at
1188–89 (10th Cir. 2002) (discussing that superior must know that opposition to the employment
action was motivated by a belief that employer was engaging in discrimination prohibited by Title
VII). Viewing the evidence in a light most favorable to Plaintiff, she complained of unfair
treatment due to Ramsay’s failure to adequately respond to her questions and Nicholson’s
promotion. Although Plaintiff used the terms “equal opportunity,” “disparities,” and “fairness”
regarding the process, she did not suggest in her email that she was being discriminated against
because of her gender. (Doc. 83-4.) The court finds that Plaintiff’s May 9 email did not constitute
protected activity.12 See Faragalla, 411 F. App’x. at 148; Lucas v. Off. of Colo. State Pub. Def.,
705 F. App'x 700, 706 (10th Cir. 2017).
EEOC Charge. Finally, Defendant concedes that the EEOC charge filed on May 30, 2018,
constitutes protected activity. Defendant, however, asserts that Plaintiff has not shown that any
11
Reviewing the cited testimony, none of the individuals discuss gender discrimination. Rather, they generally refer
to “a lawsuit,” “wrongdoing,” and retaliation. (Doc. 73 at 28.) Deputy Chief Salcido believed that Plaintiff may
have been making an EEO complaint but did not know the process. As discussed previously, neither party attempts
to define what this means and based on Defendant’s EEO policy definitions, discrimination means differential
treatment.
12
For clarity, even if Plaintiff’s May 9 email included the March 12 email as an attachment, it would not constitute
protected activity for the reasons previously discussed in this order.
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WPD supervisors or employees knew about the charge. “An employer's action against an
employee cannot be because of that employee's protected opposition unless the employer knows
the employee has engaged in protected opposition.” Petersen, 301 F.3d at 1188-89 (citing
Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993) (“plaintiff must show that the individual who
took adverse action against him knew of the employee's protected activity”)). Retaliation is
prohibited under § 2000e–3(a) only if the superior retaliating against Plaintiff knew about her
protected activity.
Id.
Plaintiff cannot establish causation without showing that the
decisionmakers had knowledge of the EEOC charge.
In her response brief, Plaintiff makes no attempt to show that a decisionmaker had
knowledge of her EEOC charge. Rather, Plaintiff only cites the fact that she made the charge.
Plaintiff’s brief is then completely silent regarding the charge, whether any decisionmaker had
notice, and what adverse actions were taken because of the charge. Therefore, the court finds that
Plaintiff has failed to establish a prima facie case of retaliation with respect to the filing of her
EEOC charge.
Defendant is entitled to summary judgment on Plaintiff’s claim of retaliation.
IV.
Conclusion
Defendant’s motion for summary judgment (Doc. 69) is GRANTED. The clerk is directed
to enter judgment of dismissal in favor of Defendant.
IT IS SO ORDERED. Dated this 10th day of May 2022.
__s/ John W. Broomes __________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE
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