Waide v. Oklahoma City City of et al
Filing
87
ORDER granting in part and denying in part 54 Defendant City of Oklahoma City's Motion for Summary Judgment. Signed by Honorable Timothy D. DeGiusti on 3/29/19. (kmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CATHERINE E. WAIDE,
Plaintiff,
vs.
CITY OF OKLAHOMA CITY, et al.,
Defendants.
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Case No. CIV-16-817-D
ORDER
Before the Court is Defendant City of Oklahoma City’s Motion for Summary
Judgment [Doc. No. 54], filed pursuant to Fed. R. Civ. P. 56. The City seeks a judgment
in its favor on all claims asserted in the Complaint: gender and race discrimination, hostile
work environment, and retaliation under Title VII of the Civil Rights Act of 1964 as
amended (“Title VII”), 42 U.S.C. § 2000e et seq.; interference with rights under the Family
and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.; violation of a Fourteenth
Amendment right of due process under 42 U.S.C. § 1983; and a parallel discrimination
claim under Oklahoma law. 1 Plaintiff Catherine Waide has filed a response brief [Doc.
No. 75], and the City has replied [Doc. No. 78]. Thus, the Motion is fully briefed. 2
1
All other claims originally asserted against the City have been voluntarily dismissed.
See 8/2/17 Order [Doc. No. 43] (granting Plaintiff’s Consent Motion to Amend Complaint;
dismissing Counts III and VI and allegations under 42 U.S.C. § 1985).
2
In addition to this full round of briefing, the City supplemented its original brief with an
amended exhibit [Doc. No. 85] of additional deposition testimony. Also, Defendant Douglas
Kupper filed a motion for summary judgment regarding Plaintiff’s § 1983 claim. In their present
briefs, the City adopts the facts and arguments in Defendant Kupper’s motion, and Plaintiff adopts
her response to that motion. The Court granted Defendant Kupper’s motion by Order of March 4,
Standard of Decision
Summary judgment is proper “if the movant shows 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 material fact is one that “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
genuine if the evidence is such that a reasonable jury could return a verdict for either party.
Id. at 255. All facts and reasonable inferences must be viewed in the light most favorable
to the nonmoving party. Id. If a party who would bear the burden of proof at trial lacks
sufficient evidence on an essential element of a claim, all other factual issues concerning
the claim become immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The movant bears the initial burden of demonstrating the absence of a dispute of
material fact warranting summary judgment. Celotex, 477 U.S. at 322-23. If the movant
carries this burden, the nonmovant must go beyond the pleadings and “set forth specific
facts” that would be admissible in evidence and that show a genuine issue for trial. See
Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 324; Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 671 (10th Cir. 1998). “To accomplish this, the facts must be identified by
reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”
Adler, 144 F.3d at 671; see Fed. R. Civ. P. 56(c)(1)(A). “The court need consider only the
cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
2019 [Doc. No. 86]. For the same reasons stated in the March 4 Order, the City is entitled to
summary judgment on Plaintiff’s § 1983 claim, and therefore, this part of the City’s Motion will
be granted without further discussion.
2
The Court’s inquiry is whether the facts and evidence identified by the parties present “a
sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” See Anderson, 477 U.S. at 251-52.
Statement of Undisputed Facts 3
Until June 22, 2015, Plaintiff worked for the City as the superintendent of the
grounds division of the parks department. This is a high-level management position that
reports directly to the assistant director of the department, who in turn reports directly to
the director. In her position as a division head, Plaintiff (a white female) had five peers
who were heads of other divisions – three white males, one black male, and another white
female. Plaintiff directly supervised two unit operations supervisors (a black male and a
white male), a management specialist (white female), and an office coordinator (black
female). As discussed infra, Plaintiff complains as part of her Title VII claim that the black
male under her supervision, John Brooks, received no discipline for engaging in some of
the same conduct for which she was terminated. 4
During 2014, the director and assistant director of the parks department, as well as
the business manager, all retired. In May 2014, Douglas Kupper was hired as the new
3
This statement includes material facts that are properly supported by the asserting party
and not opposed in the manner required by Rule 56(c). Any stated fact that is not supported by a
party’s citation to the record is disregarded. In assessing the affidavits submitted, the Court will
“disregard inadmissible hearsay statements contained in affidavits, as those statements could not
be presented at trial in any form.” Argo v. Blue Cross & Blue Shield of Kans., Inc., 452 F.3d 1193,
1199 (10th Cir. 2006) (emphasis omitted).
4
Plaintiff points out that she was not Mr. Brooks’ supervisor after April 2, 2015, when she
was relieved of certain duties; Mr. Brooks then was directly supervised by the assistant director.
But Plaintiff does not identify any alleged misconduct by Mr. Brooks during that time period.
3
director. In October 2014, Walt Bratton was hired as the assistant director and became
Plaintiff’s immediate supervisor. In November 2014, Mr. Bratton approved Plaintiff’s
request to take 40 hours of paid leave from December 15-19, 2014; the parties dispute
whether Mr. Bratton knew this leave period was protected by FMLA.
On November 14, 2014, Mr. Bratton presented Plaintiff with her annual
performance evaluation for the period of June 2013 to June 2014. Plaintiff received an
overall rating of “Proficient – Meets All Expectations.” During the meeting, Mr. Bratton
set goals for Plaintiff. She later provided comments about the goals; Mr. Bratton responded
and sent a copy to Mr. Kupper. On November 20, 2014, Plaintiff met with Mr. Kupper
and delivered a document stating complaints about Mr. Bratton’s supervision, particularly
his evaluation and his responses to her comments. Plaintiff said she did not believe any
further conversation between her and Mr. Bratton would be successful because “he appears
to interpret a differing opinion as a personal attack.” See Def. Kupper’s Mot., Ex. 4 [Doc.
No. 48-4] at 1 (ECF page numbering). Plaintiff stated that Mr. Bratton had questioned her
integrity and abilities as a manager, and she complained of his chastising tone and lack of
professional courtesy. Plaintiff also suggested certain comments by Mr. Bratton were
“harassing.” Id. at 3. Mr. Kupper sent Plaintiff’s complaint to the human resources
department (“HR”) and discussed it with Mr. Bratton.
More conflict between Plaintiff and Mr. Bratton, and complaints to Mr. Kupper,
ensued. On December 22, 2014, following her FMLA leave, Plaintiff complained that
Mr. Bratton’s had “harassed” her female subordinate during her absence about Plaintiff’s
4
FMLA leave. See Waide Aff. [Doc. No. 75-1] ¶ 9. Mr. Kupper viewed Mr. Bratton’s
questioning of Plaintiff’s leave as inappropriate and discussed it with him.
On December 23, 2014, Mr. Bratton met with Plaintiff and discussed the status of
five job assignments. Later that day, he followed up with an email summarizing their
agreement regarding her projects and deadlines. He also advised her to “concentrate on
focusing [her] energy on listening and following through with work assignments . . . rather
than spending [her] valuable energy on how to get out of them.” See City’s Mot., Ex. 8
[Doc. No. 54-8]. Plaintiff was offended by this comment, and complained to Mr. Kupper
about it on December 29, 2014. She viewed it as an example of how Mr. Bratton
“continue[d] to chastise, belittle and berate” her; she told Mr. Kupper that she found “the
continual nature of this type of communication harassing.” See id. After receiving this
message, Mr. Kupper again contacted HR regarding Plaintiff’s complaint.
In January 2015, Plaintiff, Mr. Brooks, and Mr. Bratton interviewed candidates for
a vacant position of field operations supervisor (“FOS”) in the grounds division. They
selected two candidates and recommended them to the personnel department for hiring.
The personnel operations manager, Rebecka Shaw, rejected the recommendation in favor
of a different candidate, David Thiemann, whom they were instructed to hire. Plaintiff,
Mr. Brooks, and Mr. Bratton met with Ms. Shaw on January 23, 2015, concerning her
instructions. She directed them to meet with Mr. Thiemann, explain their expectations,
delineate what tasks he would perform, and let him decide whether to accept the challenge.
In Ms. Shaw’s words, they should “have a come to Jesus meeting [with Mr. Thiemann] so
he understands what he’s getting into.” See Shaw Dep. [Doc. No. 75-16], 29:22-30:6.
5
Plaintiff and Mr. Brooks subsequently met with Mr. Thiemann and offered him the
job, which he accepted. Plaintiff’s statements during the meeting later became the subject
of a complaint by Mr. Thiemann in March 2015. He accused Plaintiff and Mr. Brooks of
trying to discourage him from taking the job and setting him up to fail. According to
Plaintiff, her statements were misconstrued and taken out of context. Within two months
after assuming the position, Mr. Thiemann asked to be demoted to a lower position.
Near the time of Mr. Thiemann’s promotion, another vacant FOS position was filled
by a candidate selected by Mr. Brooks and Plaintiff, without consulting Mr. Bratton. On
January 29, 2015, Mr. Bratton sent email messages to Plaintiff and Mr. Brooks requesting
an explanation. In communicating with Mr. Brooks, Mr. Bratton sent a copy to Plaintiff
and included a message to her (“Catherine it is now 5:25 PM, and once again I sent you an
email(s) requesting information and you didn’t respond”) and referenced the personnel
policy regarding insubordination.
See City’s Mot., Ex. 10 [Doc. No. 54-10].
On
January 30, 2015, Plaintiff forwarded Mr. Bratton’s message to Mr. Kupper with a
complaint that she felt threatened and disrespected. 5 She also apologized for her mistake
regarding the second FOS selection, stating she understood “the selection process was
inappropriate and lacking communication.” Id. Ex. 11 [Doc. No. 54-11].
On February 16, 2015, Mr. Bratton met with Plaintiff and presented her with a
“Documentation Log” listing dates and items of concern regarding her performance. A
personnel specialist, Carla Chatman, attended the meeting. Mr. Bratton discussed with
5
She also explained that she did not respond to Mr. Bratton’s email because she believed
an oral discussion had satisfied his concern.
6
Plaintiff the contents of the log, which consisted of a four-page, single-spaced document
spanning a period from October 7, 2014, to February 13, 2015. The log included alleged
instances in which Plaintiff failed to communicate with Mr. Bratton, did not comply with
his directives or deadlines, and acted in an unprofessional manner, including making
degrading comments regarding her employees. More than one witness has testified that
Plaintiff used the word “retards” in reference to part-time or seasonal employees who
worked in grounds maintenance.
Plaintiff denies these reports and the accuracy of
Mr. Bratton’s log; she later provided a written response. Plaintiff cites the log as another
example of Mr. Bratton’s harassment and attempts to intimidate her.
On February 20, 2015, Plaintiff met with Ms. Chatman and the personnel director,
Dianna Berry, to discuss Mr. Bratton’s treatment of her. Plaintiff took a copy of the log to
the meeting. According to Plaintiff, she reported that she viewed Mr. Bratton’s conduct as
harassment and she believed he was treating her more harshly than male employees under
his supervision. Neither Ms. Chatman nor Ms. Berry perceived Plaintiff’s complaint as
raising a personnel issue to be investigated. Plaintiff was instructed to discuss her concerns
with Mr. Kupper. However, Mr. Kupper later met with Ms. Berry and others to discuss
complaints that the personnel department had received about Mr. Bratton.
On March 17, 2015, a probationary employee in the grounds division, referred to in
Plaintiff’s Motion only as D.B., allegedly made remarks that his co-workers considered
threatening while holding a machete. D.B.’s supervisor did not send him home at the time
of the incident, but reported it to Mr. Brooks. Plaintiff and Mr. Brooks reviewed witness
statements and interviewed D.B., who denied picking up a machete. D.B. also complained
7
that he had been denied training and had been retaliated against by his supervisor. Plaintiff
and Mr. Brooks decided to transfer D.B. to another district until an investigation could be
completed. However, on March 27, 2015, Mr. Bratton directed Plaintiff to terminate
D.B.’s employment, which she did.
Also in March 2015, Mr. Kupper directed Mr. Bratton to meet with Ms. Shaw and
investigate a complaint that HR had received from Mr. Thiemann about his treatment by
Mr. Brooks. Mr. Bratton launched an investigation in which he interviewed a number of
employees regarding their treatment by Mr. Brooks and Plaintiff. On March 31, 2015,
Mr. Bratton delivered a written report to Mr. Kupper that summarized witness interviews,
stated his findings, and recommended that Plaintiff and Mr. Brooks “should be relieved of
the responsibilities of their positions” due to “a pattern of behavior of management through
fear and intimidation.” See City’s Mot., Ex. 20 [Doc. No. 54-20] at 13.
During a meeting with Mr. Kupper and Mr. Bratton on April 2, 2015, Plaintiff and
Mr. Brooks were informed of the results of the investigation, and Plaintiff was informed
she would be relieved of supervisory duties. Mr. Brooks received no discipline because,
according to Mr. Kupper, “[t]he actions that Brooks was accused of happened under
[Plaintiff’s] management, not Mr. Bratton’s management.” See Kupper Dep. 185:16-20.
Mr. Kupper intended for Mr. Bratton to start “immediately working with Mr. Brooks . . .
to change his attitude towards his employees, and take the necessary opportunities to
counsel [him] on a better way of communicating.” Id. 186:2-7. Asked why Plaintiff did
not receive the same opportunity, Mr. Kupper explained, “I felt that a woman and a
manager of so many years of experience should intuitively know that these are the wrong
8
activities, and again, if she wasn’t aware that her management team was acting
inappropriately, then there was issues with her ability to manage the organization.” Id.
186:8-15.
Mr. Kupper provided Plaintiff a written list of her changed job responsibilities in a
memorandum dated April 2, 2015. See City’s Mot., Ex. 21 [Doc. No. 54-21]. Mr. Kupper
intended the job changes to limit Plaintiff’s contact with subordinate employees. Plaintiff
believed some of the changes – such as a requirement to “[c]heck in with Walt Bratton
each morning when arriving at the office,” id., ¶ 3 – were intended to humiliate her. She
also viewed the investigation as retaliation for her complaints about Mr. Bratton’s conduct.
At the April 2 meeting, Plaintiff delivered her written rebuttal to Mr. Bratton’s log,
and Mr. Kupper reviewed it. In the rebuttal, Plaintiff complained of Mr. Bratton’s
“oppressive micromanagement” that was meant to harass her and accused Mr. Bratton of
engaging in “workplace bullying.” See City’s Mot., Ex. 22 [Doc. No. 54-22] at 6, 10.
Plaintiff also provided a copy of the rebuttal to HR, and met with Ms. Chatman on April 7,
2015, to discuss it and Mr. Kupper’s April 2 memo. Plaintiff performed the responsibilities
set out in the April 2 memo with agreed modifications, and certain duties that had been
removed were subsequently restored.
Later in April 2015, in response to complaints to HR about Mr. Bratton, Ms. Berry
interviewed other division heads regarding Mr. Bratton’s supervision. One interviewee,
Melinda McMillan, also criticized Plaintiff’s supervision of subordinate employees.
Ms. Berry prepared a summary of reported complaints about Mr. Bratton. See Pl.’s Resp.
City’s Mot., Ex. 9 [Doc. No. 75-9]. In late April or early May, Mr. Kupper determined
9
that Mr. Bratton was not correcting the issues that they had discussed, and he informed
Mr. Bratton that he needed to resign. Mr. Bratton resigned May 4, 2015, and Mr. Kupper
selected Ms. McMillan to replace him.
Mr. Kupper and Ms. McMillan met with Plaintiff and her subordinates on May 5,
2015, to inform them of these changes. It was later reported to Mr. Kupper that Plaintiff
was seen celebrating Mr. Bratton’s departure by singing and dancing to the song “Happy”
by Pharrell Williams in front of employees. Mr. Kupper received no first-hand account of
the incident, and Plaintiff denies that it occurred. Mr. Kupper has testified that he believed
Plaintiff’s reported behavior, combined with prior attitude and management issues,
warranted disciplinary action. Plaintiff denies this is the real reason for her discipline.
On May 22, 2015, Plaintiff was placed on administrative leave with pay and given
written notice by Mr. Kupper of a pre-determination meeting regarding disciplinary action,
“up to and including termination.”
See Def. Kupper’s Mot., Ex. 5 [Doc. No. 48-5]
at 2. The notice alleged three policy violations and provided examples of unacceptable
conduct:
fostering a culture of intimidation (describing two specific instances of
intimidating statements, including ones to Mr. Thiemann); poor decision making or
management of human resources (citing the decision to retain and transfer D.B.); and
unprofessionalism, describing two instances of unprofessional conduct (the “Happy”
incident after Mr. Bratton resigned and derogatory references to employees as “retarded”).
On June 5, 2015, the pre-determination meeting was held, and Plaintiff provided a
written response to the allegations in the notice. On June 22, 2015, Plaintiff’s employment
was terminated by Defendant Kupper. Plaintiff received a written decision, stating that she
10
was terminated because she “failed to meet the department’s expectations of a division
manager” and the administration lacked confidence in her ability to lead her division “in a
manner consistent with the goals and vision of the administration.” See Def. Kupper’s
Mot., Ex. 7 [Doc. No. 48-7] at 2.
Plaintiff filed a grievance challenging her termination as provided by the City’s
personnel policies. In her grievance statement, Plaintiff denied the allegations against her,
complained that progressive discipline was not used, and alleged that her discipline was
retaliatory (for complaining about Mr. Bratton) and discriminatory (because male
employees involved in some incidents were not disciplined). A grievance review board
issued a decision that was largely favorable to Plaintiff and recommended her
reinstatement. See Pl.’s Resp. City’s Mot., Ex. 54 [Doc. No. 57-56]. However, the city
manager rejected the board’s recommendation and upheld Plaintiff’s termination. The city
manager stated that Plaintiff was “terminated for conduct that [he found] unacceptable for
a Division Manager” and that he “believe[d] it to be in the best interest of the City . . . that
[she] not be reinstated.” See Def. Kupper’s Mot., Ex. 9 [Doc. No. 48-9]. Plaintiff also
filed an EEOC charge of gender and race discrimination and retaliation. After Plaintiff
received an EEOC notice of her right to sue, she commenced this action in state court in
June 2016, and Defendants timely removed it to federal court.
Defendant’s Motion
The City seeks summary judgment on Plaintiff’s Title VII claims under the familiar
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The City first asserts that Plaintiff cannot establish a prima facie case of race discrimination
11
because she is a member of a historically favored group and she cannot establish
circumstances from which to infer reverse race discrimination by the City. The City also
asserts that Plaintiff cannot establish a prima facie case of gender discrimination because
she lacks any facts to show that she was disciplined under circumstances suggesting
disparate treatment from a similarly situated male employee. The City also asserts that
Plaintiff cannot establish a prima facie case of retaliation because she cannot show either
that she engaged in protected opposition to discrimination or that there is a causal
connection between any such activity and an adverse action by the City. Further, if Plaintiff
could establish a prima face case under Title VII, the City asserts that it had legitimate,
nondiscriminatory and nonretaliatory reasons for terminating Plaintiff and she cannot show
these reasons are pretextual. Finally, the City asserts that Plaintiff cannot establish the
existence of a gender-based hostile work environment (as alleged) or show that the City
took an adverse action that interfered with Plaintiff’s right to take FMLA leave.
Plaintiff’s Response
In response, Plaintiff strongly disagrees with the City’s view of her Title VII claims
except she does not address race discrimination; her response is also silent regarding her
FMLA claim. Although the City contends these omissions mean “Plaintiff has confessed
its Motion” regarding her claims of race discrimination and FMLA interference, this is not
quite true. Under Rule 56(e)(3), the Court has an independent duty to determine that
summary judgment is appropriate, even in the absence of a response by the adverse party.
See Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir. 2002); Murray v. City of
Tahlequah, 312 F.3d 1196, 1200 (10th Cir. 2002). Thus, the Court must still consider
12
whether the City is entitled to summary judgment on Plaintiff’s race discrimination and
FMLA claims. After addressing these claims, the Court will turn to the contested claims
addressed by the City’s Motion.
Discussion
A.
Reverse Race Discrimination
Under the traditional McDonnell Douglas analysis, the first element of a prima facie
case requires proof that the plaintiff is a member of a protected class. In Notari v. Denver
Water Department, 971 F.2d 585 (10th Cir. 1992), the court of appeals “held that in cases
of reverse racial discrimination, instead of showing minority group membership, a plaintiff
must ‘establish background circumstances that support an inference that the defendant is
one of those unusual employers who discriminates against the majority.’” Mattioda v.
White, 323 F.3d 1288, 1292 (10th Cir. 2003) (quoting Notari, 971 F.2d at 589). In
modifying the first element of a prima facie case, the Tenth Circuit “recognized that
members of the majority group are not necessarily entitled to a presumption of
discrimination afforded to members of a minority group.” Id.; see Taken v. Okla. Corp.
Comm’n, 125 F.3d 1366, 1369 (10th Cir. 1997). In this case, Plaintiff makes no effort to
show circumstances that would suggest the City is an unusual employer who discriminates
against white employees. 6 Therefore, Plaintiff has failed to establish a prima facie case of
reverse race discrimination, and the City is entitled to summary judgment on this claim.
6
Plaintiff also does not provide any direct evidence of racial discrimination in the City’s
decision to terminate her employment.
13
B.
FMLA Interference
An FMLA claim based on an entitlement or interference theory arises from
29 U.S.C. § 2615(a)(1). See Dalpiaz v. Carbon Cty., 760 F.3d 1126, 1131 (10th Cir. 2014);
Metzler v. Fed. Home Loan Bank, 464 F.3d 1164, 1170 (10th Cir. 2006)). The Tenth
Circuit has explained liability under this theory as follows:
To establish a claim of FMLA interference under § 2615(a)(1), an
employee must show “(1) that she was entitled to FMLA leave, (2) that some
adverse action by the employer interfered with her right to take FMLA leave,
and (3) that the employer’s action was related to the exercise or attempted
exercise of her FMLA rights.” Campbell [v. Gambro Healthcare, Inc.], 478
F.3d [1282] at 1287 [(10th Cir. 2007)] (internal quotation marks and brackets
omitted). To satisfy the second element of an interference claim – adverse
action interfering with the right to take FMLA leave – “the employee must
show that she was prevented from taking the full 12 weeks[] of leave
guaranteed by the FMLA, denied reinstatement following leave, or denied
initial permission to take leave.” Id. Thus, an interference claim arises when
an adverse employment decision is made before the employee has been
allowed to take FMLA leave or while the employee is still on FMLA leave.
Id.
Dalpiaz, 760 F.3d at 1132 (footnote omitted). “The interference or entitlement theory is
derived from the FMLA’s creation of substantive rights. If an employer interferes with the
FMLA-created right to medical leave or to reinstatement following the leave, a deprivation
of this right is a violation regardless of the employer’s intent.” Smith v. Diffee FordLincoln-Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002).
It is undisputed that Plaintiff was entitled to FMLA leave, that she submitted a
request to take one week of FMLA leave in December 2014 to care for a family member,
and that she was approved to take paid leave that week. Plaintiff does not present any facts
to show that the City took an adverse action against her in December 2014 that prevented
14
her from taking the leave or that prevented her from returning to work after the leave.
Therefore, she has failed to establish an essential element of her alleged FMLA claim, and
the City is entitled to summary judgment on this claim.
C.
Hostile Work Environment
A hostile work environment that violates Title VII is one involving harassment
based on a prohibited factor, such as gender, that is “sufficiently severe or pervasive to
alter the conditions of [the victim’s] employment and create an abusive working
environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). “Severity and
pervasiveness are evaluated according to the totality of circumstances, Harris v. Forklift
Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993), considering such
factors as the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Chavez v. New Mexico, 397 F.3d 826,
832 (10th Cir. 2005). “[T]he environment must be both subjectively and objectively hostile
or abusive.” MacKenzie v. City of Denver, 414 F.3d 1266, 1280 (10th Cir. 2005). The
fact-finder must “judge the objective severity of the harassment from the perspective of a
reasonable person in the plaintiff’s position, considering all the circumstances.” See
Harsco Corp. v. Renner, 475 F.3d 1179, 1187 (10th Cir. 2007); see Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 81 (1998); Harris, 510 U.S. at 21. “But severity and
pervasiveness are not enough. The ‘plaintiff must produce evidence that she was the object
of harassment because of her gender.’” Chavez, 397 F.3d at 833 (quoting Penry v. Fed.
Home Loan Bank, 155 F.3d 1257, 1261 (10th Cir. 1998); emphasis added in Chavez). If
15
these elements are established, a plaintiff must also establish a basis for holding the
employer liable, such as proof that the employer “knew or should have known of the
conduct and failed to stop it.” See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759
(1988); Bertsch v. Overstock.com, 684 F.3d 1023, 1027 (10th Cir. 2012).
In this case, the City acknowledges Plaintiff’s view that she was “harassed” or
treated harshly by Mr. Bratton, but it challenges Plaintiff’s ability to prove objectively
severe or pervasive conduct based on gender. The City also points to facts that show it
responded to complaints by Plaintiff and others about Mr. Bratton’s management style by
counseling Mr. Bratton and then causing him to resign. Based on these facts, the City
contends it “took prompt remedial action” that absolves it of any liability for Mr. Bratton’s
conduct. See City’s Mot. at 26.
In response, Plaintiff presents facts and evidence that show, when viewed most
favorably to her as required by Rule 56, that Mr. Batton engaged in a course of conduct
toward Plaintiff in which he closely supervised her work, frequently assigned her tasks and
deadlines, repeatedly criticized her performance and her response (or lack thereof) to his
instructions, and arguably belittled or demeaned her as a management-level employee.
The evidence also shows Mr. Kupper adopted Mr. Bratton’s recommendation to limit
Plaintiff’s responsibilities and imposed requirements that she found demeaning. However,
Plaintiff has not presented any evidence of sexual or gender-based conduct, any physical
threats or overtly hostile conduct, any insults or use of derogatory language, or any facially
discriminatory conduct. The Court recognizes that gender-neutral conduct may in fact be
gender-based and a hostile work environment may be created when gender-neutral
16
harassment is viewed in the context of other gender-discriminatory conduct and hostility.
See Chavez, 397 F.3d at 833, 836-37; O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093,
1097, 1102 (10th Cir. 1999). The Court finds, however, that Plaintiff has not pointed to
circumstances that, viewed objectively, establish severe or pervasive harassment that
created a hostile or abusive working environment based on gender.
In short, the Court finds that Plaintiff has failed to demonstrate a genuine dispute of
material fact as to whether she was subjected to a hostile work environment from genderbased harassment. Therefore, the Court finds that the City is entitled to summary judgment
on Plaintiff’s hostile work environment claim.
D.
Gender Discrimination
1.
Prima Facie Case
To establish a prima facie case of gender discrimination under the McDonnell
Douglas framework, a plaintiff must establish that 1) she is a member of a protected class;
2) she suffered an adverse employment action; and 3) “the challenged action took place
under circumstances giving rise to an inference of discrimination.” EEOC v. PVNF,
L.L.C., 487 F.3d 790, 800 (10th Cir. 2007). An inference of discrimination may be shown
by circumstantial evidence, for example, by showing that a similarly situated male
employee was treated more favorably than the female plaintiff. See Strickland v. United
Parcel Serv., Inc., 555 F.3d 1224, 1231-32 (10th Cir. 2009). In this case, the City does
not dispute that Plaintiff can satisfy the first two elements; it challenges only Plaintiff’s
ability to satisfy the third prong. The City asserts that Plaintiff relies only on the fact that
17
she was treated differently from Mr. Brooks but he was not similarly situated to Plaintiff
because he was a subordinate employee.
The Court is not persuaded that differences in the management-level positions of
Plaintiff and Mr. Brooks are dispositive. Mr. Kupper was specifically asked to explain his
different treatment of Plaintiff and Mr. Brooks when Mr. Bratton recommended that both
of them should be disciplined and relieved of their supervisory duties. Mr. Kupper’s
testimony in response to this question could reasonably be found to suggest that he based
his decision, in part, on Plaintiff’s gender. Mr. Kupper stated that as an experienced
manager and as a woman Plaintiff should have intuitively known that her behavior was
improper. Based on this direct reference to gender as a basis for Mr. Kupper’s discipline
of Plaintiff, the Court finds that a reasonable inference of gender-based decision making
by Mr. Kupper with respect to Plaintiff’s termination could also be drawn. Therefore, the
Court finds that Plaintiff has demonstrated a genuine dispute of material fact as to her prima
facie case of gender discrimination.
2.
Pretext
Proceeding to the next step of the McDonnell Douglas analysis, the City asserts that
it had legitimate, nondiscriminatory reasons for terminating Plaintiff’s employment, as
shown by Mr. Kupper’s pre-termination notice and written termination decision. Plaintiff
responds by presenting facts and argument to show these asserted reasons for terminating
her employment are pretextual.
“A plaintiff can establish pretext by showing the defendant’s proffered nondiscriminatory explanations for its actions are so incoherent, weak, inconsistent, or
18
contradictory that a rational factfinder could conclude they are unworthy of belief.” EEOC
v. C.R. England, Inc., 644 F.3d 1028, 1038-39 (10th Cir. 2011) (internal quotations and
alterations omitted); see Foster v. Mountain Coal Co., 830 F.3d 1178, 1194 (10th Cir.
2016). Also, “[e]vidence of pretext may include prior treatment of plaintiff; the employer’s
policy and practice regarding minority employment (including statistical data); disturbing
procedural irregularities . . . ; and the use of subjective criteria.” Jaramillo v. Colo. Judicial
Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005) (internal quotation omitted). “A plaintiff
demonstrates pretext by showing either that a discriminatory reason more likely motivated
the employer or that the employer’s proffered explanation is unworthy of credence.”
Zamora v. Elite Logistics, Inc., 478 F.3d 1160, 1166 (10th Cir. 2007) (internal quotation
omitted).
Upon consideration of the record presented, the Court finds that Plaintiff has
presented sufficient facts and evidence, although barely, from which a reasonable finding
of pretext could be made. Plaintiff primarily argues that the allegations of misconduct
leveled against her were unfounded, and she complains of discriminatory conduct by
Mr. Bratton, who was not involved in the decision to terminate her employment. However,
the record also contains evidence, discussed supra, suggesting that Mr. Kupper held
Plaintiff to a higher standard because she was a woman. His stated reasons for terminating
her employment are entirely subjective. Plaintiff also argues facts that, viewed most
favorably to her, suggest other weaknesses in the explanation of why Plaintiff’s alleged
misconduct warranted immediate termination. Accordingly, regardless whether the Court
would draw the same inferences, the Court finds that Plaintiff has made a minimally
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sufficient showing to establish a genuine dispute of material fact regarding whether the
City’s stated reasons for terminating her employment are pretextual.
For these reasons, the City is not entitled to summary judgment on Plaintiff’s gender
discrimination claim.
E.
Retaliation
The same burden-shifting framework of McDonnell Douglas guides the analysis of
Plaintiff’s retaliation claim. See Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1227 (10th
Cir. 2008). Following Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S.
53, 68 (2006), the initial prima facie case of retaliation is formulated as follows:
To establish a prima facie case of retaliation, a plaintiff must demonstrate
(1) that [s]he 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 existed between the protected
activity and the materially adverse action.
Argo v. Blue Cross & Blue Shield of Kans., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006)
(footnote omitted); accord Proctor v. United Parcel Serv., 502 F.3d 1200, 1208 (10th Cir.
2007). Once a plaintiff makes this initial showing, “[i]f the defendant is able to articulate
a legitimate nondiscriminatory reason for the adverse action, the plaintiff must then show
that the articulated reasons are a pretext for retaliation.” Medlock, 164 F.3d at 550. In this
case, the City challenges both Plaintiff’s ability to establish the first and third elements of
her prima facie case and her ability to prove pretext.
First, as to protected activity, the City contends Plaintiff’s many complaints about
Mr. Bratton did not allege gender discrimination and, thus, they were not protected by
Title VII. The City relies on the rationale of Petersen v. Utah Dep’t of Corr., 301 F.3d
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1182, 1888 (10th Cir. 2002), that “an employer cannot engage in unlawful retaliation if it
does not know that the employee has opposed or is opposing a violation of Title VII.”
Plaintiff responds, correctly, that no “magic words” are necessary. “[T]o qualify as
protected opposition [to discrimination] the employee must convey to the employer his or
her concern that the employer has engaged in a practice made unlawful by [Title VII].”
See Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008). Further, a
complaint is protected even if the employee is wrong about whether the conduct of which
she complains constitutes a violation of Title VII. It is “enough if she had a ‘good faith
belief that Title VII ha[d] been violated.’” Petersen, 301 F.3d at 1188 (quoting Love v.
Re/Max of Am., Inc., 738 F.2d 383, 385 (10th Cir. 1984)). Title VII permits a plaintiff to
maintain a retaliation claim “based on a reasonable good-faith belief that the underlying
conduct violated Title VII.” See Crumpacker v. Kan. Dep’t of Human Res., 338 F.3d 1163,
1171-72 (10th Cir. 2003).
Upon consideration of the facts presented by Plaintiff, and drawing all reasonable
inferences in her favor, the Court finds that Plaintiff has demonstrated a genuine dispute of
material fact as to whether she engaged in protected opposition to discrimination based on
a reasonable belief that Title VII had been violated. Clearly, by the time her rebuttal to
Mr. Bratton’s log was presented, Plaintiff was complaining of harassment and a hostile
work environment; she cited and quoted from EEOC materials and the City’s personnel
policy regarding harassment. See City’s Mot., Ex. 22 [Doc. No. 54-22] at 9-10. Although
it is less clear that Plaintiff identified the harassment as gender-based, Plaintiff believed
she was being treated more harshly than her male counterparts and she informed Ms. Berry
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of this belief. Ms. Berry’s report of the investigation into complaints against Mr. Bratton
identified “potential gender discrimination issues” as one concern. See Pl.’s Resp. City’s
Mot., Ex. 9 [Doc. No. 75-9] at 1. Thus, the Court finds that Plaintiff may be able to
establish protected activity and the first element of a prima facie case of retaliation.
As to the third element, a causal connection between Plaintiff’s protected activity
and an adverse employment action, the court of appeals has explained as follows:
“A causal connection may be shown by evidence of circumstances that
justify an inference of retaliatory motive, such as protected conduct closely
followed by adverse action.” O’Neal v. Ferguson Constr. Co., 237 F.3d
1248, 1253 (10th Cir. 2001) (quotation omitted). Standing alone, temporal
proximity between the protected activity and the retaliatory conduct must be
very close in time. Otherwise, “the plaintiff must offer additional evidence
to establish causation.” Id.
Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1228 (10th Cir. 2006); see Anderson v.
Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999). For this purpose, “a one and
one-half month period between protected activity and adverse action may, by itself,
establish causation,” [but] “a three-month period, standing alone, is insufficient to establish
causation.” Anderson, 181 F.3d at 1179. Further, a plaintiff must show the decisionmaker
in the adverse action knew of the employee’s protected activity. See Montes v. Vail Clinic,
Inc., 497 F.3d 1160, 1176 (10th Cir. 2007); see also Hinds, 523 F.3d at 1203.
Plaintiff relies solely on a close temporal proximity to establish a causal connection
between her complaint of gender-based harassment by Mr. Bratton and her termination.
See Pl.’s Resp. City’s Mot. at 21. Plaintiff presented her rebuttal memo and discussed it
with HR on April 7, 2015. Plaintiff was placed on administrative leave on May 22, 2015;
the meeting regarding possible discipline of Plaintiff was held June 5, 2015; and the
22
termination decision was made June 22, 2015. Thus, the adverse action that forms the basis
of Plaintiff’s retaliation claim is separated from her protected activity by less than three
months. 7 Under similar circumstances, the court of appeals has been willing to assume
that a causal connection could be found. See Anderson, 181 F.3d at 1179 (“assuming two
months and one week is sufficient to support a prima facie case of retaliation”); see also
Webb v. Level 3 Commc’ns, LLC, 167 F. App’x 725, 735 (10th Cir. 2006) (same). Further,
Plaintiff’s termination was closely connected to Mr. Bratton’s resignation, which was
partially based on her complaints.
Therefore, on the summary judgment record presented, the Court finds that Plaintiff
has carried her burden to demonstrate that a genuine dispute of material facts precludes
summary judgment on the basis urged by the City, that is, she is unable to establish a prima
facie case of retaliation. Further, as discussed above, the Court also finds a genuine dispute
of material fact regarding pretext. Therefore, the City is not entitled to summary judgment
on Plaintiff’s claim of retaliation.
Conclusion
For these reasons, the Court finds that the City is entitled to summary judgment on
Plaintiff’s claims of race discrimination and hostile work environment and Plaintiff’s
FMLA and § 1983 claims, but that genuine disputes of material facts preclude summary
judgment on Plaintiff’s claims of gender discrimination and retaliation.
7
Plaintiff also presents facts to show she was assigned a “not eligible for rehire” status
sometime after her termination, and she seems to suggest in her argument that this designation
might constitute a material adverse action. See id. at 22. However, she does not identify when
the designation occurred, and she does not connect it to a protected activity.
23
IT IS THEREFORE ORDERED that Defendant City of Oklahoma City’s Motion
for Summary Judgment [Doc. No. 54] is GRANTED in part and DENIED in part, as set
forth herein.
IT IS SO ORDERED this 29th day of March, 2019.
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