United States of America v. Southeastern Oklahoma State University et al

Filing 219

ORDER denying 177 Defendants' Motion for Summary Judgment. Signed by Honorable Robin J. Cauthron on 10/26/17. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DR. RACHEL TUDOR,
Plaintiff,
v.
SOUTHEASTERN OKLAHOMA
STATE UNIVERSITY and
THE REGIONAL UNIVERSITY
SYSTEM OF OKLAHOMA,
Defendants.

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Case No. CIV-15-324-C

MEMORANDUM OPINION AND ORDER
Plaintiff 1 was employed as a professor at Southeastern Oklahoma State University.
She advised Defendants that she was transitioning from a male to a female. Plaintiff alleges
that following this announcement she began suffering significant discrimination and
harassment. The alleged discrimination culminated in denial of her application for tenure
and dismissal from the University. Defendants have filed a Motion for Summary Judgment
arguing the undisputed material facts and law entitle them to judgment on each of
Plaintiff’s claims. Plaintiff objects to Defendants’ Motion and argues there are questions
of material fact remaining in this matter.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings and affidavits show there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a

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Although Plaintiff is an Intervenor, the original Plaintiff has been dismissed. For
simplicity, in this Order Ms. Tudor will be referred to as Plaintiff.

matter of law. Fed. R. Civ. P. 56(c). “[A] motion for summary judgment should be granted
only when the moving party has established the absence of any genuine issue as to a
material fact.” Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 561 F.2d 202, 204
(10th Cir. 1977). The movant bears the initial burden of demonstrating the absence of
material fact requiring judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). A fact is material if it is essential to the proper disposition of the claim.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the movant carries this
initial burden, the nonmovant must then set forth “specific facts” outside the pleadings and
admissible into evidence which would convince a rational trier of fact to find for the
nonmovant. Fed. R. Civ. P. 56(e). These specific facts may be shown “by any of the kinds
of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.”
Celotex, 477 U.S. at 324.

Such evidentiary materials include affidavits, deposition

transcripts, or specific exhibits. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d
1022, 1024 (10th Cir. 1992). “The burden is not an onerous one for the nonmoving party
in each case, but does not at any point shift from the nonmovant to the district court.” Adler
v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998). All facts and reasonable
inferences therefrom are construed in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
1. Hostile Environment
Defendants first challenge Plaintiff’s ability to establish a prima facie case of hostile
environment. According to Defendants, when examining Plaintiff’s evidence there are an
insufficient number of instances where she faced any actions which could be construed as
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hostile. Thus, Defendants argue, Plaintiff has failed to demonstrate a work environment
permeated with intimidation and ridicule. See Morris v. City of Colo. Springs, 666 F.3d
654, 656-69 (10th Cir. 2012) (gathering cases which hold that isolated incidents or sporadic
offensive behavior as opposed to a steady barrage of opprobrious harassment, is not enough
to make out a hostile work environment claim, unless those few events amount to such
extreme behavior as physical or sexual assault). In response, Plaintiff argues that she
suffered more than a handful of sporadic insults, incidents, or comments. Rather, she
argues that every day over the course of a four-year period she had restrictions on which
restrooms she could use, restrictions on how she could dress, what makeup she could wear.
She also was subjected to hostilities from administrators targeting her gender, such as using
an improper pronoun to refer to her and other gender-based hostilities. 2

Although

Plaintiff’s proof is not well organized or her facts well presented, she has offered sufficient
evidence from which a reasonable jury could find that her work place was filled with a
sufficient amount of offensive or insulting conduct that it was sufficiently severe or
pervasive. See Lounds v. Lincare, Inc., 812 F.3d 1208, 1228 (10th Cir. 2015).
Defendants next argue that even if the Court finds a hostile environment existed,
Plaintiff’s claims should fail as she failed to take advantage of the preventive and corrective
opportunities that were available to her. See Faragher v. City of Boca Raton, 524 U.S. 775,
118 S. Ct. 2275, 2283 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.

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Plaintiff also argues about the benefits permitted under her health plan. However,
as Defendants note, Plaintiff has not exhausted her administrative remedies regarding these
issues and therefore that portion of her claim will not be considered.
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Ct. 2257, 2270 (1998). Defendants argue that while employed at Southeastern Oklahoma
State University (“SEOSU”) Plaintiff never submitted a complaint or grievance regarding
the allegedly harassing events. Plaintiff argues Defendants have failed to demonstrate that
the policies in existence at the time she suffered harassment were sufficient or could redress
the hostilities she alleged. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72-73
(1986), and Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d 642, 653 (10th Cir. 2013).
According to Plaintiff, at the time of her employment, Defendants did not have any policy
addressing transgender discrimination or the type of hostility that she endured as a result
of her status as a transgender person.

Indeed, the evidence provided by Plaintiff

demonstrates that, at the time Plaintiff was subjected to the alleged harassment, the policies
in existence at SEOSU did not address transgender persons. Whether or not Plaintiff
should have understood that the sexual harassment or sex discrimination policies could
have reached her claims and therefore should have been required to file a report is
immaterial, as the cases cited by Plaintiff require a more specific policy before a defendant
is entitled to the Faragher/Ellerth defense.
2. Discrimination
Defendants next challenge Plaintiff’s ability to establish a Title VII claim of
discrimination. According to Defendants, Plaintiff is not subject to protection under Title
VII because her status as a transgender person is not a protected class, relying on Etsitty v.
Utah Transit Auth., 502 F.3d 1215, 1215, 1220 (10th Cir. 2017). The Court has previously
resolved Defendants’ arguments related to the Etsitty case, see Dkt. No. 34. Defendants
offer nothing in the present Motion to warrant changing that determination.
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Defendants next argue that Plaintiff fails to demonstrate that she was treated less
favorably than similarly situated employees outside of her protected class, again relying on
Plaintiff’s status as a transgender person, that is, that she was neither male nor female.
Defendants offer no legal authority to support their claim other than the apparent further
reliance on the Etsitty case. Accordingly, this argument, too, is foreclosed by the Court’s
prior decision.
Defendants argue that Plaintiff fails to meet a prima facie case because she cannot
demonstrate the job was filled by someone outside the protected class. Defendants misstate
the applicable law. The Supreme Court has specifically held that age-discrimination
plaintiffs need not show disparate treatment as compared to co-workers outside the
protected class. See O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 311-12
(1996). Although O’Connor dealt with age discrimination, in Perry v. Woodward, 199
F.3d 1126, 1135-40 (10th Cir. 1999), the Tenth Circuit extended the same basic point to
other forms of alleged discrimination. Plaintiff has established a prima facie case.
Defendants argue that even if Plaintiff meets her prima facie case, her claims still
fail, as she cannot overcome the legitimate non-discriminatory reason they have offered
for her termination; that is, Plaintiff cannot demonstrate pretext. Defendants argue that
their decision to deny Plaintiff tenure was a subjective matter based upon decisions made
at the administrative level and that the Court should grant deference to the administration’s
decisions on this issue. As Defendants note, it is not necessary that the reasons for their
decision were correct, only that they believed them to be correct. Tran v. Trustees of State
Colls. in Colo., 355 F.3d 1263, 1268–69 (10th Cir. 2004). In response, Plaintiff argues that
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she can demonstrate pretext because she has offered evidence which suggests substantial
procedural irregularities in the decision to deny her tenure. For example, she notes one of
the decisionmakers on her tenure initially refused to give her any reason for the denial.
Later, that same person planted a backdated letter in her portfolio spelling out some
rationales for the denial. A second decisionmaker, McMillan, refused to provide his
reasons for denial and persisted even after the faculty advisor committee ordered him to
disclose them. Finally, after the president’s denial he directed McMillan to write the letter
giving the president’s reason for the denial of tenure. Plaintiff argues that each of these
actions demonstrate some weakness or implausibility in Defendants’ assertion that her
tenure submission was clearly insufficient. Plaintiff further directs the Court to Dr.
Parker’s expert report demonstrating in some detail that Defendants’ evaluations of
Plaintiff’s scholarship and service did not match the articulated criteria for tenure and
promotion evaluation.
After consideration, the Court finds that Plaintiff has offered at least some evidence
demonstrating that Defendants’ reasons for denying her tenure were pretextual. That is,
Plaintiff’s evidence demonstrates some weakness, implausibility, inconsistency, or
incoherencies in Defendants’ proffered reason. Jones v. Barnhart, 349 F.3d 1260, 1266
(10th Cir. 2003).
3. Retaliation
Finally, Defendants argue that Plaintiff cannot go forward with her retaliation claim,
as she cannot establish a prima facie case. Defendants again revisit their argument that
Plaintiff is not entitled to protected status. That argument warrants no further discussion.
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Defendants next argue that Plaintiff only made one factual allegation in her Complaint in
support of her retaliation claim, namely, that she was denied the opportunity to reapply for
tenure during the 2010-11 academic year. Defendants argue that any repeated application
would have been contrary to administrative practice, as any portfolio not withdrawn prior
to denial by the president was never considered for reapplication. In response, Plaintiff
notes that she engaged in additional protected activities. For example, she filed an internal
grievance and sent a letter to the U.S. Department of Education, complaining of
discrimination hostilities she suffered during the 2009-10 tenure cycle. The Court finds
that Plaintiff has come forward with sufficient facts from which a reasonable jury could
find she was subject to retaliation by Defendants.
CONCLUSION
For the reasons set forth herein, Defendants’ Motion for Summary Judgment (Dkt.
No. 177) is DENIED.
IT IS SO ORDERED this 26th day of October, 2017.

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