Laura RIDGELL-BOLTZ, Plaintiff-Appellant, v. Carolyn W. COLVIN, Acting Commissioner, United States Social Security Administration, Defendant-Appellee.
No. 12-1495
United States Court of Appeals, Tenth Circuit.
April 30, 2014.
565 Fed.Appx. 680
We largely settled these questions in favor of the State twenty years ago. See Malek v. Haun, 26 F.3d 1013 (10th Cir. 1994). And we have recently reiterated that the Utah indeterminate sentencing scheme, including the authority of the Board and its discretionary parole framework, as well as the procedures followed by the Board, do not violate the Federal Constitution. See Straley v. Utah Bd. of Pardons, 582 F.3d 1208 (10th Cir.2009); Sherratt v. Utah Dep‘t of Corr., 545 Fed.Appx. 744 (10th Cir.2013). The arguments raised by Mr. Naves in and with respect to his petition are simply a rehash of those addressed in and rejected by these opinions or are otherwise governed by them.
We may grant a COA only if Mr. Naves first makes a “substantial showing of the denial of a constitutional right.”
Mr. Naves’ request to proceed on appeal ifp is GRANTED. For the reasons stated above, and by the district court in its thorough discussion of the merits, the application for a COA is DENIED. Because Mr. Naves has not shown a violation of any right secured by the Constitution of the United States, the district court‘s dismissal of his
Ruth Fuess Keegan, Office of the United States Attorney, Albuquerque, NM, Andrew Felton Maunz, Social Security Administration Office of the General Counsel, Baltimore, MD, Giel Stein, United States Social Security Administration Office of the General Counsel, Chicago, IL, for Defendant-Appellee.
Before GORSUCH, McKAY, and ANDERSON, Circuit Judges.
ORDER AND JUDGMENT*
MONROE G. McKAY, Circuit Judge.
Plaintiff Laura Ridgell-Boltz brought this action against her employer, the United States Social Security Administration (“SSA“), alleging violations of Title VII of the Civil Rights Act of 1964,
I
Plaintiff is presently employed by the SSA as an Assistant Regional Counsel. Between January 2006 and November 2007, and while acting as a Special Assistant U.S. Attorney for the SSA, she was supervised by Yvette Keesee, the Deputy Regional Counsel, and Deana Ertl-Lombardi, the Regional Chief Counsel. During this time, Plaintiff believed that she and other women over the age of forty were being subjected to verbal abuse, heavier workloads, greater scrutiny, and higher performance standards than men and younger women in their office.
Underlying Plaintiff‘s belief was an incident in November 2006, when two other female attorneys, Debra Meachum and Teresa Abbott, both of whom were over forty, had their work highly criticized by Ms. Ertl-Lombardi and Ms. Keesee. At a meeting, Ms. Keesee so denigrated Ms. Abbott‘s work that Ms. Abbott ran out of the room feeling physically ill. Ms. Keesee then went to Ms. Abbott‘s office and forced her to revise her work for some eight hours. The next day, Ms. Meachum tried to speak to Ms. Keesee about the revisions, but Ms. Keesee rolled her eyes, laughed, and said she did not need to speak with her. Ms. Keesee then told Ms. Meachum to get out of her way as she left her office. Shortly thereafter, Ms. Keesee had a federal police officer remove Ms. Meachum from the building. Plaintiff saw the officer, spoke with Ms. Meachum immediately afterwards, and agreed to contact the SSA‘s equal employment opportunity (“EEO“) counselor when Ms. Meachum told her what happened. Plaintiff contacted the EEO counselor later that day despite her own fears of retaliation.
Following this incident, Ms. Meachum and Ms. Abbott filed complaints of age and gender discrimination against the SSA. Both women identified Plaintiff as a witness who was being subjected to similar treatment. Indeed, Ms. Keesee frequently threatened to give Plaintiff poor performance reviews, place her on a performance improvement plan, and fire her. Ms. Keesee also told her she was not performing to her job-level and lacked interpersonal skills, while Ms. Ertl-Lombardi called her sloppy.
In July 2007, Ms. Keesee and Ms. Ertl-Lombardi accused Plaintiff of misconduct and making false statements in a court document. On August 1 of that year, Ms. Keesee placed Plaintiff on administrative leave, and on August 6, the U.S. Attorney‘s Office relieved Plaintiff of her duties based on the allegations made by Ms. Keesee and Ms. Ertl-Lombardi. On November 23, 2007, Ms. Ertl-Lombardi formally terminated Plaintiff from federal service.
The Merit Systems Protection Board (“MSPB“) reinstated Plaintiff with back pay and associated benefits, along with interest, but it denied her claims of discrimination and retaliation. Boltz v. Social Security Admin., 111 M.S.P.R. 568 (July 9, 2009). Plaintiff then brought this action alleging a hostile work environment, wrongful discharge, and retaliation.2
Plaintiff then moved for a new trial, arguing that the court applied the wrong legal standard in entering judgment as a matter of law. Although the court acknowledged it had applied the wrong legal standard, it denied a new trial, ruling that Plaintiff still failed to show “that she was discriminated against because of her sex and that the discrimination was sufficiently severe or pervasive such that it altered the terms [or] conditions of her employment and created an abusive working environment.” Id., Vol. I at 43. This appeal followed.
II
A. ADEA
At the outset, the SSA contends that Plaintiff‘s age-based claims are moot because she has already been reinstated with back-pay and associated benefits. We review de novo whether the claims are moot, see Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1122-23 (10th Cir.2010), and agree they are.
“The broad purpose of the ADEA is to insure that older individuals who desire work will not be denied employment.” Bruno v. Western Elec. Co., 829 F.2d 957, 967 (10th Cir.1987). To this end, the ADEA provides for legal and equitable relief, including reinstatement, back-pay, and other pecuniary benefits associated with the job, but it does not permit the recovery of compensatory damages. See
The SSA also contends that Plaintiff‘s claim for wrongful discharge based on age and gender discrimination is moot because she was awarded damages on her claim of retaliatory discharge. According to the SSA, she has been compensated for her wrongful termination and any additional damages for that injury, regardless of the theory of liability, would constitute an impermissible double recovery. We agree.
“It is well established that ‘double recovery’ is precluded when alternative theories seeking the same relief are pled and tried together.” Mason v. Okla. Turnpike Auth., 115 F.3d 1442, 1459 (10th Cir.1997), overruled on other grounds by TW Telecom Holdings Inc. v. Carolina Internet Ltd., 661 F.3d 495, 497 (10th Cir.2011). A jury may allocate a single damages award between two distinct theories of liability, but “in the absence of punitive damages a plaintiff can recover no more than the loss actually suffered.” Medina v. Dist. of Columbia, 643 F.3d 323, 326 (D.C.Cir.2011) (internal quotation marks omitted).
Plaintiff concedes that “she may not recover the same damages for alternative theories for her termination.” Reply Br. at 8. Yet she contends the jury could have considered alternate theories in making a single damages award. That may be, but she sought relief for only one injury and she has now been compensated for that injury. Thus, without punitive damages, any additional award for her wrongful discharge would confer a double recovery for the same injury. See Medina, 643 F.3d at 329-30 (reversing two damage awards based on alternative theories of liability for one injury). The claim for age and gender-based discharge is thus moot.
C. Hostile Work Environment
This leaves Plaintiff‘s hostile work environment claim, which the district court dismissed under
We review de novo the district court‘s entry of judgment as a matter of law. Williams v. W.D. Sports, N.M., Inc., 497 F.3d 1079, 1086 (10th Cir.2007). “[S]uch a judgment is warranted only if the evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion.” Id. (quotation omitted). Under this standard, “the question is not whether there is literally no evidence supporting the nonmoving party but whether there is evidence upon which the jury could properly find for that party.” Owner-Operator Indep. Drivers Ass‘n Inc. v. USIS Commercial Servs., Inc., 537 F.3d 1184, 1191 (10th Cir.2008) (brackets and internal quotation marks omitted). In conducting our review, “[w]e must view the evidence and any inferences to be drawn therefrom most favorably to the non-moving party.” Williams, 497 F.3d at 1086 (quotation omitted).
To prevail on a gender-based hostile work environment claim, a plaintiff must show that she was discriminated against because of her gender and “that the discrimination was sufficiently severe or per
Plaintiff has marshalled enough evidence to get her claim before a jury. There was testimony that Ms. Keesee was “hot tempered,” “abusive,” “profane,” and “loud,” and that she directed this behavior “primarily at the older female attorneys.” Aplt.App., Vol. I at 427. The older female attorneys shared their similar treatment and lamented who happened to be targeted on any given day. Ms. Meachum testified that Ms. Keesee consistently referred to Ms. Abbott as a “weak bitch” and criticized her for “the man she was dating.” Id. at 273. Ms. Keesee also spent 35 minutes screaming and using profanity at the top of her voice toward Carolyn Cooper, another female attorney over forty, because Ms. Cooper did not attend an out-of-work function. Ms. Keesee told her she was “spineless” and “a bad person” for not standing up to her husband, who apparently did not want her to attend the function. Id., Vol. II at 621. Ms. Keesee then turned to Ms. Cooper‘s professional abilities, saying she “was a poor performer” and should not have been hired. Id. at 621-22.
There was also the episode when Ms. Ertl-Lombardi and Ms. Keesee severely criticized Ms. Meachum and Ms. Abbott for their work on a brief. Without fully reading the brief, Ms. Keesee mocked Ms. Abbott, refused to let her speak, and so denigrated her legal skills that Ms. Abbott ran out of the meeting ready to vomit. A younger female attorney reported that afterwards Ms. Keesee came to her office making fun of Ms. Abbott, “saying, ‘Can you believe how childish that was that she would—can you believe she almost threw up in my office.‘” Id. at 704. Later that same day, Ms. Keesee went to Ms. Abbott‘s office to watch her revise the brief and positioned herself in such a way that Ms. Abbott “couldn‘t move unless [Ms. Keesee] took a break.” Id., Vol. I at 381. They stayed that night for some eight hours, until 8:00 p.m. When the other attorneys were leaving at 5:00 p.m., Ms. Abbott could hear them walking by her office. She described the experience, stating, “[I]t was almost as if ... [Ms. Keesee was] bullying me and letting everybody know that she was in control of me, that I was going to be the puppet, and I wasn‘t going to do a thing without her permission.” Id. at 384. And the next day, when Ms. Meachum tried to ask Ms. Keesee why they had revised the brief, Ms. Keesee had her removed from the building by a federal police officer. Plaintiff knew this and
There was also testimony that Ms. Keesee ridiculed Plaintiff, told her she lacked interpersonal skills, and threatened her with termination. There was testimony that Plaintiff was overloaded with work and so micromanaged that she could not complete her work. According to Plaintiff, she and the other older women were given more work and greater scrutiny than their male counterparts. Ms. Meachum confirmed that “the different treatment that [Ms. Keesee] gave to [the men] ... was startling.” Id. at 267. Ms. Keesee frequently attended Plaintiff‘s oral arguments to observe her performance, and although Ms. Keesee stated that she also attended the arguments of Special Assistant U.S. Attorney, Tom Kraus, he denied that she ever did. Also, Ms. Meachum testified that as the lead Special Assistant U.S. Attorney, she knew Mr. Kraus was assigned two cases for every three assigned to herself and Ms. Abbott. Ms. Meachum asked to have her workload adjusted, but no action was taken on her request while Mr. Kraus had his workload reduced.
Additionally, Ms. Meachum said that Ms. Keesee would routinely chastise women at meetings. Ms. Abbott said she was embarrassed, humiliated, and ridiculed by Ms. Keesee. At one meeting hosted by Ms. Abbott, Ms. Keesee interrupted and announced that Ms. Abbott was disorganized and unprepared; she then walked out of the meeting with Ms. Ertl-Lombardi, leaving those in attendance to apologize and express their dismay at Ms. Keesee‘s behavior. Ms. Cooper had a similar experience, and at other meetings hosted by Ms. Meachum, the supervisors would roll their eyes, appear to be sleeping, and play on their Blackberries while whispering and giggling. They would disrupt the agenda and belittle or denigrate the older women in attendance. Any expression of dissent from the women would result in admonishments and additional work monitoring. Ms. Meachum testified that Ms. Keesee‘s admonishments became so prevalent that she “couldn‘t do [her] work without constant interruption. [She] couldn‘t complete a task without [Ms. Keesee] monitoring or denigrating whatever [she] was doing.” Id. at 280. And as with Plaintiff, Ms. Keesee told the other older women they lacked interpersonal skills, were not working to their grade level, would get poor performance reviews, and risked being put on a performance improvement plan or being fired. See id. at 109 (Plaintiff chastised for mistakes and frequently threatened with termination, being put on a performance improvement plan, or receiving a poor evaluation), id. at 281-82 (Meachum told she lacked interpersonal skills and was not performing to her grade level), id. at 385-86 (Abbott threatened with a poor evaluation, being put on a performance improvement plan, and termination), id., Vol. II at 621-22 (Cooper told she was a poor performer, was not doing a good job, and should not have been hired).
Things grew worse for Plaintiff when the investigation began in Ms. Meachum and Ms. Abbott‘s discrimination complaints. Ms. Ertl-Lombardi and Ms. Keesee accused Plaintiff of professional misconduct and lying in a court document. The allegation of misconduct concerned a show-cause order entered in one of Plaintiff‘s cases. The U.S. Attorney‘s Office had planned to defend Plaintiff in the matter, but Ms. Keesee intervened and persuaded the U.S. Attorney‘s Office to change strategies, which left Plaintiff to provide her own defense. In a separate matter, Ms. Keesee accused Plaintiff of lying in a court document. Plaintiff had sought an extension of time to file a brief after the filing deadline and asserted she
The male attorneys were not insulated from the harsh treatment, but the evidence indicates they did not experience the severity of treatment experienced by the older women. The men confirmed that Ms. Ertl-Lombardi and Ms. Keesee were micromanagers and that Ms. Keesee nitpicked their work. But the men were not berated at meetings when they were unprepared, nor did they face reprisal for expressing different opinions. While Ms. Keesee accused one male attorney of lying in a draft brief, she merely had a conversation with him about it. He testified that neither Ms. Keesee nor Ms. Ertl-Lombardi threatened to fire him or put him on a performance improvement plan. He also said they did not tell him that he lacked interpersonal skills or was working below his grade level. Ms. Keesee similarly accused Mr. Kraus of lying in a brief, but rather than terminate him, she required that he clarify the misrepresentation to the court. In still another matter, Mr. Kraus acknowledged he had mischaracterized a court filing once, but he said Ms. Keesee did not discover it. There was also testimony that Ms. Keesee yelled at men, including Mr. Kraus, who raised his voice as well, yet she did not have him removed by a federal police officer. And the one time she had Mr. Kraus revise his work in her presence, she stayed for only one hour, not eight. Moreover, this happened after Plaintiff, Ms. Meachum, and Ms. Abbott filed their discrimination complaints.
Finally, there was evidence that Ms. Keesee was “very polite [and] interactive” with the men, id., Vol. I at 426, but directed her rude and intimidating behavior “primarily at the older female attorneys,” id. at 427. Another female attorney who was younger than forty confirmed that Ms. Keesee was “especially hard” on “women over forty.” Id., Vol. II at 705. And a female paralegal stated that Ms. Ertl-Lombardi was rude to the older women but would laugh and joke with the men. Id. at 536-37. She similarly stated that Ms. Keesee tried to intimidate people and was rude to women but not men. Id. at 538.
This testimony could lead a jury to properly conclude that Plaintiff was subjected to a hostile work environment on account of her gender. Therefore, viewing the reasonable inferences in favor of Plaintiff as the non-moving party, the evidence does not point “but one way,” Williams, 497 F.3d at 1086 (internal quotation marks omitted). Although we express no opinion on the merits of Plaintiff‘s hostile work environment claim, we conclude the district court erred in entering judgment on it as a matter of law.
III
Plaintiff‘s appeal from the dismissal of her age-based claims under the ADEA is dismissed as moot, as is her appeal from the dismissal of her wrongful discharge claims. The district court‘s dismissal of her Title VII hostile work environment claim is reversed, and the case is remanded to the district court for further proceedings consistent with this order and judgment.
MONROE G. McKAY
UNITED STATES CIRCUIT JUDGE