Grеta SEMSROTH; Kim Warehime; and Sara Voyles, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. CITY OF WICHITA; and Chief Norman Williams, individually and in his official capacity, Defendants-Appellees.
No. 07-3155.
United States Court of Appeals, Tenth Circuit.
Dec. 22, 2008.
304 Fed. Appx. 707
Before LUCERO, HOLLOWAY, and EBEL, Circuit Judges.
In this case, nothing in the plea agreement precluded the government from providing evidence to assist the court in sentencing. To the contrary, a reasonable reading and understanding of its unambiguous language establishes the parties’ agreement that the government was not limited in presenting to the court or probation office any and all facts and arguments relevant to Mr. Abston‘s sentence and available to the government at the time of sentencing. Thus, the government was not precluded from providing all evidence germane to sentencing and did not breach the plea agreement by providing information used for enhancing his sentence. Id. at 1210, 1213.
While the government may have indicated during the hearing on Mr. Abstоn‘s request for mitigating and impeaching evidence that it did not intend to “put on any extensive evidence ... at the sentencing” or present the testimony of parents or children, it did indicate that, if needed, it would present testimony from the Florida or Oklahoma City agents and any other evidence the court needed. It also explained at the sentencing hearing that it was providing witness testimony regarding Mr. Abston‘s obstruction of justice and pattern of exploiting children enhancements based on his continuing objections to those enhancements. Thus, nothing about the representations made at the motion hearing or the evidence offered at sentencing demonstrates a breach of the plea agreement. For these reasons, we hold the plea agreement appellate waiver provision is valid for the purpose of dismissing this appeal in accordance with that provision.
III. Conclusion
For the foregoing reasons, the government‘s motion to dismiss is GRANTED and Mr. Abston‘s appeal is DISMISSED.
Lawrence W. Williamson, Jr., Shores, Williamson & Ohaebosim, Wichita, KS, for Plaintiffs-Appellants.
Kelly J. Rundell, Asst. City Attorney, City of Wichita, Kansas, Wichita, KS, for Defendants-Appellees.
ORDER AND JUDGMENT*
DAVID M. EBEL, Circuit Judge.
Plaintiffs-Appellants appeal the district court‘s decision to grant summary judg-
I.
A. Factual Background
Officer Greta Semsroth, Officer Sara Voyles, and Officеr Kim Warehime (collectively, the “Officers“) have all served as officers with the Wichita Police Department (the “Department“) for at least the last seven years.1 The Officers alleged that during their tenure with the Department, their supervisors discriminated and retaliated against them by subjecting them to disparate treatment, disparate impact, retaliation, and a hostile work environment, all in violation of Title VII. Given the distinct nature of their claims, we briefly explain each officer‘s allegations separately.2 Due to Title VII‘s timely filing requirements discussed below, we outline here only those allegations that involve events that fall within 300 days from when each officer filed her EEOC intake questionnaire.
i. Officer Semsroth
Officer Semsroth alleged that her superior officers and colleagues at the Depart-
ii. Officer Voyles
Officer Voyles also alleged that her superior officers and colleagues at the Department subjected her to sexual discrimination. Two of those allegations involved conduct that occurred during the 300-day window. First, Voyles alleged that during her pregnancy, Lieutenant Bohannon made numerous comments regarding her weight and eating habits. Second, Voyles alleged that she was verbally reprimanded in front of media personnel after she complained about Lieutenant Bohannon‘s conduct.
iii. Officer Warehime
Officer Warehime made similar allegations of sexual discrimination in her EEOC intake questionnaire. Three of those allegations involved conduct that occurred during the 300-day window. First, Officer Warehime alleged that the Department subjected her to disparate disciplinary treatment arising from a charge of conduct unbecoming of an officer. Second, she alleged that three lieutenants interrogated her regarding a “women‘s luncheon” attended by female officers. Third, she alleged that the Department denied her a temporary rotation after her attorney sent the Department a letter regarding her concerns about sexual discrimination.
B. Procedural Background
After filing their intake questionnaires with the EEOC, the Officers filed a class action in the United States District Court for the District of Kansas against the defendants. The district court denied the plaintiffs’ motion for class certification and dismissed the claims against Chief Williams in his official capacity.3 The district court then granted the defendants summary judgment on the plaintiffs’ individual Title VII claims for disparate treatment, hostile work environment, and disparate impact. The plaintiffs now appeal that final decision.4
II.
We review the district court‘s grant of summary judgment de novo. Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1163 (10th Cir.2007). Summary judgment is appropriate where
A.
Before considering the merits, we must first determine whether the Officers complied with three general prerequisites to bring a civil suit pursuant to Title VII. Prior to filing such a suit in federal court, plaintiffs must administratively exhaust their claims in a timely fashion by filing a charge with the EEOC. Montes, 497 F.3d at 1163. We address this requirement in three steps. First, we analyze whether the document each plaintiff filed with the EEOC constitutes a charge. Second, we determine which allegations included in the charge, if any, are timely. Third, we determine whether the federal claims are included within the scope of those timely allegations.
i. EEOC charge
While the contours of the requirement to file a charge may appear straightforward, we have not resolved what type of document constitutes a charge for the purposes of Title VII. The Officers contend that their EEOC intake questionnaires qualify as charge documents because they constitute requests for the EEOC to take action on the alleged discrimination. We partially agree. As discussed more completely below, Officer Semsroth and Officer Voyles took sufficient steps to reasonably indicate that they sought the EEOC to take action on their behalf based on the allegations included in their intake questionnaires. Accordingly, these documents сonstitute charges. The record, however, does not indicate that Officer Warehime took similar steps, and therefore, we dismiss her appeal because she did not file a charge with the EEOC.
Against a similar regulatory backdrop, the Supreme Court recently addressed what constitutes a charge for the purpоses of the
Before Holowecki, we had held that a document filed with the EEOC constitutes a charge where: (i) the document satisfies the requirements of
With this standard in mind, we turn to consider whether each plaintiff filed a charge with the EEOC. The Officers each filed separate intake questionnaires with the EEOC in March 2004. These questionnaires are similarly formatted and contain all five types of information required by
Our inquiry, however, does not end with
Given the discourse in the letters from the EEOC as well as the existence of the Right-to-Sue letters, we conclude that as a result of their subsequent actions, Officer Semsroth‘s and Officer Voyles‘s intake questionnaires reasonably constitute charges for the purposes of Title VII. The letters from the EEOC indicate that the Officers needed to take additional steps to demonstrate the requisite desire to start the EEOC administrative process and that if they did so, the EEOC would likely close their cases and issue Right-to-Sue letters. The presence of the Right-to-Sue letters suggests that Semsroth and Voyles in fact took the affirmative steps necessary to signal their desire to the EEOC to start its administrative process. We stress that the EEOC‘s subsequent conduct is not a necessary prerequisite for filing a charge. Here, we consider the EEOC‘s subsequent conduct only as evidence that Semsroth and Voyles must have contacted the EEOC subsequent to filing the intake questionnaire to request EEOC action, because the EEOC had advised these two plaintiffs that it would not issue right-to-sue letters to them in the absence of express requests for action. Accordingly, we conclude that Semsroth and Voyles filed charges with the EEOC.
The lack of a Right-to-Sue letter for Officer Warehime, on the other hand, suggests that Officer Warehime did not take the steps necessary to demonstrate a desire to start the EEOC process. The EEOC letter to Officer Warehime notes that Warehime met with an EEOC Senior Investigator, but nothing in the record suggests that Warehime requested that the EEOC start its process during that interview. Without additional evidence, Officer Warehime‘s intake questionnaire cannot be construed as a request for the EEOC to take action, and accordingly, we conclude that Officer Warehime failed to file a charge with the EEOC. We therefore dismiss her appeal.6
ii. Timely allegations
A plaintiff‘s allegation is timely if she files her EEOC charge within 300 days of the alleged unlawful employment practice.7
Croy v. Cobe Labs., Inc., 345 F.3d 1199, 1202 (10th Cir.2003). The Officers contend, however, that the district court wrongly applied the 300-day time limit because the continuing violations doctrine enables courts to consider allegations involving conduct that occurred beyond that period for purposes of the pattern or practice method of proof. In the past, we have noted that the continuing violations doctrine is viable only for hostile work environment claims, but the Morgan Court expressly left open whether the continuing violations doctrine applied to the pattern or practice method of proof. See Nat‘l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 n. 9, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (“We have no occasion here to consider the timely filing question with respect to ‘pattern-or-practice’ claims brought by private litigants as none are at issue here.“). Since Morgan, we have only applied the continuing violations doctrine to hostile work environment claims; however, we have not had the occasion to address the pattern or practice issue left open by the Morgan Court. We now conclude that the pattern or practice method of proof is available only to the government and class actions. Accordingly, we again decline to address whether the continuing violations doctrine applies to the pattern or practice method of proof.
The pattern-or-practice method of proving discrimination has its origins in
The pattern-or-practice method of proof and the method of proof used in a typical Title VII discrimination claim require different steps to prove a claim of discrimination. Pursuant to Teamsters, the pattern-or-practice method of proof involves two stages. At the first stage, the plaintiff must establish the employer‘s liability by “demonstrat[ing] that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers.” Teamsters, 431 U.S. at 360. If the plaintiff carries this burden, then the employer may defend its liability by showing that the “[plaintiffs‘] proof is either inaccurate or insignificant ... [by] provid[ing] a nondiscriminatory explanation for the apparently discriminatory result.” Id. at 360-61 & 360 n. 46. If the defendant fails to establish a nondiscriminatory reason, then the second stage requires the court to fashion a proper remedy on the presumption that a violation has occurred. Id. at 361. If the plaintiff does not provide any additional evidence, the сourt may impose only prospective remedies. Id. If the plaintiff demonstrates that the employer subjected a particular individual to an
In contrast, a typical Title VII claim resolves issues of proof by relying on the burden-shifting method of proof from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, a plaintiff bears the initial burden and must demonstrate a prima facie case of discrimination in violation of Title VII. Id. at 802. If the plaintiff successfully makes a prima facie claim, the burden shifts to the employer to “articulate some legitimate, nondiscriminatory reason” for the adverse employment action. Id. If the employer carries that burden of production, then the plaintiff must show that the employer‘s reason is merely a pretext for discrimination. Id. at 804.
Several of our sister circuits, having noted the differences between these two methods of proof, have held that individual, private plaintiffs may not utilize the pattern-or-practice method of proof. For example, in Lowery, the Fourth Circuit distinguished these two methods of proof for two reasons. 158 F.3d at 761-62. First, the court noted that a plaintiff‘s burden under the pattern-or-practice method requires the plaintiff to prove only thе existence of a discriminatory policy rather than all elements of a prima facie case of discrimination. Id. at 761. The court found this difference problematic because the Supreme Court has never allowed an individual plaintiff to shift the burden to the employer without first demonstrating all aspects of a prima facie case. Id. Second, the Fourth Circuit also distinguished these methods of proof based on the available remedies. Id. The court noted that under the pattern-or-practice method, only prospective relief was available, unless the plaintiffs offered additional proof. Id.; see also Teamsters, 431 U.S. at 361. Because of these differences, and because the Supreme Court has never extended the pattern-or-practice method to individual plaintiffs, the court declined to allow individual plaintiffs to make their case using the pattern-or-practice method. Lowery, 158 F.3d at 761.
Other circuits have followed the Fourth Circuit‘s lead. The Fifth Circuit held that the pattern-or-practice method was inappropriate for individual plaintiffs because the Supreme Court had not extended this method beyond class actions and cases brought by the Government. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 356 (5th Cir.2001). The Sixth Circuit largely echoed Lowery when it held that “[w]e subscribe to the rationale that a pattern-or-practice claim is focused on establishing a policy of discrimination; because it does not address individual hiring decisions, it is inappropriate as a vehicle for proving discrimination in an individual case.” Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 575 (6th Cir.2004). The Seventh Circuit has also cautioned that language typical of the pattern-or-practice method was “misplaced” in an individual Title VII suit. Babrocky v. Jewel Food Co., 773 F.2d 857, 866 n. 6 (7th Cir.1985). But see Davis v. Califano, 613 F.2d 957, 963 (D.C.Cir.1979) (suggesting that the rationale of a pattern or practice claim similarly applies in a cause of action brought by an individual).
In light of the distinctions between the two methods of proof, we agree with the strong majority of our sister circuits. The disparities between both of these methods of proof and the remedies available demonstrate that the pattern-or-practice method should be reserved for government actions or plaintiffs in class actions to establish the presence of a discriminatory policy, rather than to prove an individual
In the instant case, several of the Officers’ allegations are untimely. Semsroth‘s EEOC administrative charge includes eight separate claims. Semsroth filed the charge on March 11, 2004, and therefore, the 300-day filing period began on May 16, 2003. Two of Semsroth‘s allegations—her allegations regarding being passed over for awards and her allegation regarding the picture of an award being placed in her locker—involved conduct that occurred before May 16, 2003, and thus, the district court properly excluded these allegations. The court also properly excluded the last two allegations in Semsroth‘s EEOC charge because the Officers did not include any mention of them in their response to the defendants’ motion for summary judgment, and accordingly, these allegations were not before the district court.9 Thus, the district court correctly allowed only four of the eight allegations included in Semsrоth‘s administrative charge. These allegations include: (i) the Department re-
Voyles‘s EEOC charge included five separate allegations. She filed her charge on March 18, 2004, and her 300-day filing period therefore began on May 23, 2003. Three of these allegations involved conduct that occurred prior to May 23, 2003, and thus, are time barred. The district court properly allowed the remaining two allegations: (i) an allegation regarding a supervisor‘s negative and derogatory comments regarding Voyles‘s body and eating habits made while Voyles was pregnant; and (ii) an allegation regarding an oral reprimand from a supervisor in front of various media personnel.
iii. Scope of exhausted claims
As a final matter on this issue, the Officеrs contend that the district court erroneously restricted the scope of their exhausted claims. The Officers assert that they exhausted any claim that is “reasonably related” to the allegations made in their EEOC charges. Unfortunately, the Officers cite abrogated case law to make their argument, and in light of more recent precedent, this argument lacks persuasive
B.
Shifting our attention to the merits, the Officers contend that the district court wrongly granted the defendants summary judgment because genuine issues of material fact remain regarding the Officers’ Title VII claims. We agree only in part. After reviewing the record and construing the evidence in the light most favorable to the Officers, we conclude that the district court correctly granted the defendants summary judgment on most of the Officers’ Title VII claims.11 But we REVERSE the district court‘s decision to grant the defendants summary judgment on Officer Semsroth‘s claims alleging retaliation and a hostile work environment. We, therefore, REMAND those two claims for trial.
i. Disparate treatment
To establish a prima facie case of disparate treatment, a plaintiff must demonstrate: (i) that she belongs to a protected class; (ii) that she suffered from an adverse employment action; and (iii) that her employer treated similarly situated employees differently. Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir.2005). Adverse employment action includes “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir.2007) (quotation marks omitted) (quoting Hillig v. Rumsfeld, 381 F.3d 1028, 1032-33 (10th Cir.2004)). In other words, “a mere inconvenience or an alteration of job responsibilities” will not constitute an adverse employment action.12 Id.
(quotation marks omitted) To be similarly situated, employees must “deal with the same supervisor and [be] subject to the same standards governing performance evaluation and discipline.” McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir.2006) (quotation marks omitted).
Turning to the instant case, it is clear that the district court properly granted the defendants summary judgment on all the disparate treatment claims.13 Semsroth‘s two disparate treatment claims fail to establish a prima facie discrimination claim for two reasons. First, neither event constitutes an adverse employment action. Neither the record nor the Officers’ brief indicates what adverse effect, if any, Semsroth‘s employment suffered due to the lack of disciplinary actions taken against other officers. Second, the record does not indicate that the Department treated Semsroth differently from other officers because Semsroth did not face disciplinary action in similar circumstances.
Voyles also fails to establish a prima facie claim because she did not demonstrate that the reprimand she received constituted an adverse employment action. “A written warning may be an adverse employment action only if it effects a significant change in the plaintiff‘s employment status.” Haynes v. Level 3 Commc‘ns, LLC, 456 F.3d 1215, 1224 (10th Cir.2006). Here, Voyles presented no evidence that the reprimand affected her status. Accordingly, summary judgment on the Officers’ disparate treatment claims was proper because they did not establish the required elements for a prima facie case.
ii. Disparate impact
Unlike a disparate treatment claim, a disparate impact claim does not require a plaintiff to demonstrate intentional discrimination. Carpentеr v. Boeing Co., 456 F.3d 1183, 1187 (10th Cir.2006). Instead, to establish a prima facie claim of disparate impact, a plaintiff must demonstrate that (i) a specific identifiable employment practice or policy caused (ii) a significant disparate impact on a protected group. Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1312 (10th Cir.1999), overruled on other grounds by Morgan, 536 U.S. 101, 122 S.Ct. 2061; see also
In the instant case, the Officers object to “excessive subjectivity in promotions, discipline, hiring, and terminations.” As noted above, only administratively exhausted claims are actionable. Here, the Officers’ EEOC charges do not specifically reference specific employment practices that resulted in disparate impact, nor do thеy include any factual allegations that would give rise to a reasonable expectation of an administrative investigation for a claim of disparate impact. See Jones, 502 F.3d at 1186 (noting that we determine if a claim is administratively exhausted by analyzing “the scope of the administrative investigation that can reasonably be expected to follow from the discriminatory acts alleged in the administrative charge“). Accordingly, the district court correctly granted defendants summary judgment on the Officers’ disparate impact claims.
iii. Retaliation
Title VII explicitly prohibits retaliation against any employee who brings charges of discrimination. See
“To prevail on a Title VII retaliation claim, a plaintiff must establish that retaliation played a part in the employment decision and may choose to satisfy this burden in two ways.” Fye v. Okla. Corp. Comm‘n, 516 F.3d 1217, 1224-25 (10th Cir.2008); see also Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 549 (10th Cir.1999). First, the plaintiff “may directly show that retaliatory animus played a ‘motivating part’ in the employment decision.” Fye, 516 F.3d at 1225. “If, however, the plaintiff is unable to” make that showing, “she may rely on the familiar three-part McDonnell Douglas framework to prove that the employer‘s proffered reason for its decision is a pretext for retaliation.” Id.; see also Price Waterhouse v. Hopkins, 490 U.S. 228, 247 n. 12, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality), superseded in part on other grounds by
To establish a mixed-motive claim, the plaintiff must “present[] evidence that di-
Semsroth has met that burden here with the deposition testimony of Sergeant Wiley. Wiley testified that Semsroth‘s supervisor, Lieutenant Hanley, in deciding to transfer her to Beat 39, stated that he wanted to “[p]ut her out there, she won‘t have nothing to complain about.” Wiley also indicated that Hanley‘s decision may have been motivated in part by Semsroth‘s troubled relationship with her co-workers. A reasonable jury could interpret Hanley‘s motivation—to insure that Semsroth would have nothing to complain about—as retaliation for the gender discrimination complaints she made to the City‘s affirmative action administrator, Leiker. See Fye, 516 F.3d at 1227 (considering, at summary judgment stage of litigation, whether reasonable jury could infer a retaliatory motive from the evidence presented). This evidence is, thus, sufficient to create a genuine issue of material fact that precludes summary judgment on this claim. See Thomas v. Denny‘s, Inc., 111 F.3d 1506, 1512 (10th Cir.1997) (holding plaintiff presented sufficient evidence in support of his mixed-motive retaliation claim where two witnesses testified that “several people involved in the [challenged] promotion decision process had stated that Mr. Thomas would not be considered for promotion because of his discrimination complaint“); Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1471 n. 5 (10th Cir.1992) (holding plaintiff presented sufficient evidence to support her mixed-motive retaliation claim when warehouse supervisor testified that his supervisor held plaintiff‘s prior EEOC filing against her and had misrepresented a prior incident to those who decided not to promote plaintiff).
We, therefore, reverse the district court‘s decision granting defendants summary judgment on Officer Semsroth‘s retaliation claim and remand that claim to the district court for a trial.
iv. Hostile work environment
A plaintiff establishes a Title VII violation if she “proves that ‘discrimination based on sex has created a hostile or abusive work environment.‘” Equal Employment Opportunity Comm‘n v. PVNF, L.L.C., 487 F.3d 790, 798 (10th Cir.2007) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)); see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). In considering whether the Officers asserted a claim of a sexually hostile work environment sufficient to
To establish that a sexually hostile work environment existed, a plaintiff must prove the following elements: (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on sex; and (4) due to the harassment‘s severity or pervasiveness, the harassment altered a term, condition, or privilege of the plaintiff‘s employment and created an abusive working environment. Harsco Corp., 475 F.3d at 1186. Thus, “[t]o survive summary judgment on a claim alleging a [sexually] hostile work environment, [the Officers] must show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim‘s employment and create an abusive working environment,” and that they were “targeted for harassment” because of their gender. Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680 (10th Cir.2007).
“A plaintiff does not make a showing of a pervasively hostile work environment by demonstrating a few isolated incidents of [gender-based] enmity or sporadic [gender-based] slurs. Instead, there must be a steady barrage of opprobrious [gender-based] comments.” Id. In determining whether the harassment is severe or pervasive, “we consider the work atmosphere both objectively and subjectively, looking at all the circumstances from the perspective of a reasonable person in the plaintiff‘s position.” Id. “The inquiry is particularly unsuited for summary judgment because it is quintessentially a question of fact.” Tademy v. Union Pac. Corp., 520 F.3d 1149, 1162 (10th Cir.2008).
Both Voyles and Semsroth allege their work environment was sexually hostile.
a. Officer Semsroth
Semsroth alleges that her work environment was sexually hostile and thus violated Title VII. We must start our analysis by determining which of the allegations Semsroth asserts in support of this claim we can consider. As noted above, the continuing violation doctrine remains viable for hostile work environment claims. The Morgan Court made clear that the scope of actionable claims depended on “whether the acts about which an employee complains are part of the same actionable hostile work environment practice.” 536 U.S. at 120, 122. To determine whether separate acts are part of the same practice, we look to the type, frequency, and timing of the acts, as well as to the perpetrator of the acts. Duncan v. Manager, Dep‘t of Safety, City & County of Denver, 397 F.3d 1300, 1309 (10th Cir.2005).
As previously addressed, Semsroth‘s actionable аllegations include the following: (i) the Department retaliated against her by transferring her to a beat assignment with restricted experience and career advancement opportunities; (ii) a supervising officer told her that other officers referred to her as a “bitch” and then failed to discipline those officers; (iii) the Department failed to take disciplinary action against an officer who failed to give Semsroth proper backup support during an emergency call; and (iv) a supervising officer “interrogated” her regarding a women‘s-only luncheon for female police officers. In addition, however, Semsroth
First, Semsroth testified in her deposition that Sergeant Watts admonished Semsroth to “let [her] hair down and go out and have beers with the guys.” This allegation is sufficiently related to Semsroth‘s actionable claim that Sergeant Watts, along with Captain Tabor, Lieutenant Hanley, and Sergeant Chambers, failed to discipline Officer Nixon when he did not provide backup for Semsroth in October 2003. And it was Sergeant Watts who, along with Lieutenant Hanley and Sergeant Chambers, was involved in the decision, made soon after October 2003, to transfer Semsroth to the less desirable Beat 39.
Second, Semsroth contends that Lieutenant Hanley failed to discipline Officer Tucker after Tucker, in April 2003, placed a photo of a Department award in Semsroth‘s locker, mocking her for being passed over for such an award. Captain Tabor and Sergeant Chambers were also involved in informally investigating this incident. The failure to discipline Tucker is sufficiently related to Semsroth‘s exhausted allegation that, in October 2003, Hanley, as well as Watts, failed to discipline officers for calling Semsroth a “bitch.”
Third, Semsroth alleges that the Department presented awards to male officers involved in a dangerous call in June 2002, but did not give Semsroth the same award, despite her also taking part in this call. Semsroth complained about this unequal treatment to Lieutenant Hanley and Captain Tabor. And it was Semsroth‘s complaints about being passed over for these awards that prompted Tucker to place the mocking photo in Semsroth‘s locker. These allegations are sufficiently related to Semsroth‘s allegations that Hanley failed to discipline Officer Tucker for using the photo of a Depаrtment award to mock her.
A reasonable jury could find that all three of these additional allegations were part of the same unlawful employment practice that involved Semsroth‘s other exhausted harassment allegations. See Tademy, 520 F.3d at 1160; see also Duncan, 397 F.3d at 1309. They are temporally related, and they all involve the same supervisory officers.16
We now turn to the question of whether these actionable incidents of alleged sexual harassment are sufficient for Semsroth‘s hostile environment claim to survive summary judgment. We conclude they are.
Viewed in context and in the light most favorable to her, Semsroth‘s evidence establishes the following: Semsroth has been a police officer in the Department since September 2000. In June 2002, she was the only woman among the eight first responders to answer a call which involved a
As a result, in April 2003, Semsroth complained to her supervisors about what she perceived to be the Department‘s unequal treatment of male and female officers. After her complaints, a male officer, Officer Tuсker, took photos of the awards given to the male officers and placed those photos in Semsroth‘s locker, with a note telling her “[C]ut these out and pin them on your uniform as you feel you deserve, it‘s probably the closest you will ever get to the real thing.”17 Semsroth reported this incident to her supervisor, Sergeant Chambers, who, in turn, reported it to his supervisor, Captain Tabor. Tabor promised Semsroth “that there would be discipline,” but no one conducted a formal investigation of Tucker‘s actions. Tabor, Hanley and Chambers did make Tucker apologize to Semsroth.
In mid-2003, male officers talking to Sergeant Watts and Lieutenant Hanley referred to Semsroth as a “bitch.” Neither supervisor, however, apparently took any action against the male officers.18 Instead, Watts and Hanley met with Semsroth, told her that other officers were calling her a “bitch,” and “verbally counselled” her on how to handle the situation. Watts ad-
In October 2003, Semsroth requested backup during a traffic stop. The dispatcher directed a male officer, Officer Nixon, to provide Semsroth with backup. Instead of doing so, Nixon argued with Semsroth over the radio on the need for backup. Nixon never providеd Semsroth with backup. When Semsroth complained to their supervisor, Sergeant Watts, that Nixon‘s failure to provide backup had jeopardized her safety, Watts responded that it was “just Nixon being Nixon.” Watts agreed that Nixon should have provided her backup and said he would talk to Nixon, but Watts did not want Nixon to take it the wrong way.
A week later, Semsroth attended a women-officers-only lunch. Upon her return, Semsroth‘s supervisors interrogated her about the lunch.
Still another week later, Sergeant Watts and Lieutenant Hanley transferred Semsroth to Beat 39. As previously explained, Beat 39 was referred to as the banishment beat, a beat usually reserved for new officers or those being disciplined. It was a beat with diminished opportunities for career development. Watts and Hanley informed Semsroth that this transfer was “to get [her] kind of out and away ... ‘cause [she] was having some turmoil with a cou-
In light of this evidence, we must consider whether Semsroth has established the necessary elements to recover under her claim that her work environment was sexually hostile. See Harsco Corp., 475 F.3d at 1186 (listing elements). Semsroth, as a woman, is a member of a protected class. Her complaints to her supervisors establish that the harassment she perceived was unwelcome.
And, viewing the evidence in the light most favorable to Semsroth, her male supervisors and co-workers targeted her for harassment because of her gender. “[T]he critical issue in determining whether harassment is because of sex is whether members of one sex are subjected to a disadvantage to which the other sex is not.” Id.; see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).
Here, the fact that Semsroth has presented evidence indicating that she was treated differently from similarly situated male officers supports this conclusion. See Oncale, 523 U.S. at 80-81. For instance, when there was a personality conflict between Semsroth and her male co-workers, it was Semsroth and not the male officers who was transferred to the undesirable Beat 39.
In addition, evidence that Semsroth‘s supervisors used and tolerated the use of the word “bitch” further suggests that the harassment directed at Semsroth was based on her gender. “[W]e have characterized th[at] word as a ‘sexual epithet[]’ that courts have described as ‘intensely degrading’ to women. PVNF, 487 F.3d at 799 (quoting Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1000 (10th Cir.1996)); see also Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139, 1144 (11th Cir.2008). When a supervisor “tolerate[s] the use of the word ‘bitch’ to describe” a plaintiff, “a jury should decide whether these comments were made because of gender animus.” PVNF, 487 F.3d at 799 (emphasis added); see also Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir.1999) (“[G]ender-based insults, including the term ‘bitch,’ may give rise to an inference of discrimination based on sex.“).
Moreover, a supervisor‘s use of terms like “bitch” can itself be a form of differential treatment, particularly when the supervisor uses the term to refer to many women. See Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 1096 (10th Cir.2005) (“[E]vidence supports the reasonable inference that [a supervisor] treated men and women differently.... [The supervisor] regularly directed sexually charged, humiliating, and hostile comments towards women [and] ... regularly classified women as ‘bitches.’ “), overruled on other grounds recognized in Metzler v. Fed. Home Loan Bank, 464 F.3d 1164, 1171 n. 2 (10th Cir. 2006).
Even if not all of these incidents of alleged harassment can easily be categorized as overtly based on gender, some certainly can be. In light of that, we can consider it more likely that the other actions taken against Semsroth that are not overtly gender-based may well stem from the same discriminatory hostility. See Montes, 497 F.3d at 1172; Winsor, 79 F.3d at 1000; see also Herrera, 474 F.3d at 682 n. 7.
Viewed in the light most favorable to her, Semsroth‘s evidence also establishes that this harassment was sufficiently severe and pervasive that a jury could find that it altered Semsroth‘s employment conditions. In making this determination, we consider “the frequency of the conduct; its severity; whether it is physically
Much of this conduct occurred during a two-month period from October to December 2003. See PVNF, 487 F.3d at 799 (concluding evidence established pervasive harassment when the “bulk of it occurred during a relatively short period of time—[a] four-month period“). This suggests a pervasive pattern of harassment.
Of particular moment in considering the severity of the alleged harassment was the failure of Semsroth‘s supervisors to discipline Officer Nixon for failing to provide backup for Semsroth. See, e.g., Dawson v. County of Westchester, 373 F.3d 265, 273 (2d Cir.2004) (holding that the evidence could support the finding of a pervasively hostile work environment because corrections “officers must depend upon their coworkers for mutual protection ... in potentially dangerous situations [and], [i]n such a setting, actions of co-officers and superiors that undermine an officer‘s sense of personal safety ... assume greater, not lesser, significance“); Jemmott v. Coughlin, 85 F.3d 61, 67 (2d Cir.1996) (evidence could support the finding of a hostile work environment where coworkers of a black corrections officer “put him in danger of physical harm [by] refusing to send requested back-up assistance“); Apgar v. Wyoming, No. 99-8029, 2000 WL 1059444, at *6 (10th Cir. Aug.2, 2000) (unpublished) (evidence could support the finding of a pervasively hostile work environment because, “[w]hile we would have a difficult time characterizing ‘silent treatment’ as severe and pervasive harassment in an office setting ... the behavior takes on an entirely different meaning in the law enforcement context [because] [l]aw enforce-ment officers must rely on their fellow officers while on duty“). Nixon‘s failure to provide backup could have put Semsroth in physical danger. And a jury could find that her supervisor‘s failure to address the issue adequately and discipline Nixon could create a risk that this conduct would be repeated. See Tademy, 520 F.3d at 1167 (holding that past disciplinary failures were related to later racist incidents because “employees might well ... conclude[] that they could engage in such behavior with minimal consequences“).
Semsroth‘s evidence, if believed, is therefore sufficient to establish more than an isolated or occasional incident of gender-based harassment. Rather, the evidence indicates a work environment that was permeated with gender-based intimidation and insult.
Lastly, Semsroth‘s evidence is sufficient for a jury to find the Department liable for this harassment under Title VII. An employer will be liаble “for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Burlington Indus. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Further, the employer may be liable for a sexually hostile work environment “if the employer fails to take adequate remedial and preventative responses to any actually or constructively known harassment.” Holmes v. Utah, Dep‘t of Workforce Servs., 483 F.3d 1057, 1069 (10th Cir.2007) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th Cir.1998)); see also PVNF, 487 F.3d at 799 (suggesting employer would be on notice where plaintiff‘s “supervisor knew all about [the challenged] conduct and either chose to ignore it altogether or respond in only the most minimal of ways (e.g., forcing a half-hearted apology)“); Winsor, 79 F.3d at 1002 (concluding employer gener-
For all of these reasons, we conclude that Officer Semsroth‘s hostile work environment is sufficient to survive summary judgment. “It may be that a jury would agree with [the Department] that [Semsroth] was not subjected to a severe or pervasively hostile environment based on her sex, but that is not for this Court to decide.” PVNF, 487 F.3d at 800.
b. Officer Voyles
Officer Voyles, too, asserts a hostile work environment claim. We must, again, determine which of the allegations Voyles asserts in support of this claim we can consider. As previously addressed, Voyles made two timely and thus actionable allegations in her EEOC complaint: (i) an allegation regarding a supervisor‘s negative and derogatory comments regarding Voyles‘s body and eating habits made while Voyles was pregnant; and (ii) an allegation regarding an oral reprimand from a supervisor in front of various media personnel. We focus on those allegations.19
The evidence, viewed in the light most favorable to Voyles, indicates that, during her pregnancy, her supervisor, Lieutenant Bohannon, would make derogatory remarks about Voyles‘s weight and her eating habits. Voyles complained about these remarks to Deputy Chief Stoltz, who responded that “that‘s kind of how [Bohannon] was.”
Voyles alleged that, during this same time period, Bohannon verbally reprimanded her in front of the media. In her deposition, however, Voyles instead testified that Bohannon stated, during a telephone cоnversation, that Voyles was being difficult. This conversation occurred in an open room where the media was gathered for a daily Department briefing. Although Voyles overheard this remark, she did not know if any members of the media heard it.
Although we do not engage in a simple counting exercise to determine the pervasiveness of the harassment, Voyles‘s claims constitute a few isolated incidents rather than a hostile work environment. Herrera, 474 F.3d at 680 n. 3. Her allegations are not so severe or pervasive that a reasonable jury could find that they altered the conditions of her employment. See Tademy, 520 F.3d at 1162; Herrera, 474 F.3d at 680. It is beyond question that these experiences were unpleasant, and the breadth of the allegations made in this case suggests that the Department must remain vigilant to ensure discrimination does not take place; however, given the claims properly before this court, we must conclude that Voyles did not establish that these interactions created a hostile work environment that altered her conditions of employment. Ac-
III.
As a final matter, in their brief, the Officers contend that the district court improperly excluded their expert report and other summary judgment evidence. We review this contention for abuse of discretion, Bryant v. Farmers Ins. Exchange, 432 F.3d 1114, 1122 (10th Cir.2005), and we disagree that the district court erred. The district court excluded summary judgment evidence that violated the local rules or contained inadmissible content pursuant to the
IV.
The Officers’ allegations and summary judgment evidence in this case are quite troubling. The allegations suggest that sexual discrimination remains a concern within the Department. Federal law prohibits such discrimination and we strongly regret the presence of any such misconduct. Nevertheless, in the instant case, for the most part the Officers fail to demonstrate that discriminatory motives played a role in the Department‘s employment decisions that were properly before the district court.
We REVERSE the district court‘s decision granting the defendants summary judgment on Officer Semsroth‘s retaliation and hostile-environment claims and REMAND those two claims for a trial. In all other respects, we AFFIRM the district court‘s decision granting the defendants summary judgment.
DAVID M. EBEL
CIRCUIT JUDGE
Robert E. FOX, Plaintiff-Appellant, v. R. James NICHOLSON, Secretary of Veteran Affairs, Defendant-Appellee.
No. 08-7034.
United States Court of Appeals, Tenth Circuit.
Dec. 23, 2008.
304 Fed. Appx. 728