Disagreeing with the court below, the appeals court observed that a reasonable jury could find the trooper raised triable fact issues as to the severity and pervasiveness of the alleged conduct.
Reversing summary judgment against the Title VII sex-based hostile work environment claim of a female highway patrol trooper, the Tenth Circuit noted evidence that before and after her promotion to a high profile division, she was subjected to persistent, repeated rumors of promiscuity circulated by numerous colleagues. Moreover, these incidents were accompanied by facially sex-neutral acts of harassment, which a jury could find were motivated by, and part of, sexual discrimination against her. The court, however, affirmed the dismissal of her retaliation claim as well as the lower court’s order excluding her designated expert. Judge Hartz concurred in the result (Sanderson v. Wyoming Highway Patrol, September 30, 2020, Ebel, D.).
One of a small number of female troopers since 2007, the trooper received numerous positive reviews, including a nomination for Trooper of the Year in 2014. She alleged, however, that her colleagues circulated rumors that she was sexually promiscuous, flirted and used sex to gain advantages like a new patrol car, and called her the “division bicycle,” implying that that she had sex with many of her coworkers.
Promotion. Although she was promoted in 2015 to Division O, which provides security to the governor and other state officials, and was trained as the patrol’s first female K9 handler, the resistance from her colleagues purportedly continued with some troopers stating that “Division O as a whole does not accept females.” Rumors that she was having an affair with someone in a leadership position began circulating. In addition, she was accused of developing inappropriate relationships with individuals outside of the division, was reprimanded for becoming too familiar with a deputy chief of staff to the governor, criticized for not timely answering her radio when she was in the bathroom, and when she answered it while in the restroom, she was told not to answer the radio while “douching.” She also claimed her colleagues ignored her on numerous occasions.
Demoted. In February 2016, while working with a dog trainer, she allegedly told him to stop being an “asshole.” As a result, she was removed from Division O and demoted. According to her employer, she was abrasive, abrupt, and generally a poor communicator.
Lower court proceedings. She sued, asserting Title VII claims for retaliation and hostile work environment. The district court granted the employer’s motion to exclude her designated witness, dismissed her retaliation claim without prejudice because she had failed to exhaust her administrative remedies, and granted summary judgment against her hostile work environment claim, finding she failed to show the alleged discrimination was sufficiently severe or pervasive.
Retaliation. Affirming on appeal the dismissal of the trooper’s retaliation claim, the court pointed out that she based her EEOC charge on events that occurred after her demotion—that following her demotion, she notified her supervisors she intended to file a charge of discrimination and as a result, she received a poor performance evaluation. In her complaint, however, she alleged that prior to her demotion, she complained to her supervisors about unequal treatment and was demoted as a result. Although the trooper argued that the facts she raised in her response to the employer’s position statement put it on notice as to her theory of retaliation raised in her complaint, the court, citing its decision in Smith v Cheyenne Retirement Investors, L.P., noted that “one looks only to the Charge filed with the EEOC to determine the scope of the plaintiff’s claim.” Because the trooper did not allege in her charge the facts she asserted in her complaint, the district court properly dismissed her retaliation claim for failure to exhaust.
Expert witness. Turning to the trooper’s expert witness, the court noted that she would have testified about gender stereotypes in law enforcement based on her own experience. While she offered three primary opinions in her report, the district court found her testimony was not reliable because she did not explain how her experience led to her conclusions and it was not helpful because gender stereotypes are within a juror’s common knowledge and experience. Finding that the trooper failed to show the district court abused it discretion, the appeals court affirmed the exclusion of the expert’s testimony.
Hostile work environment. As to her hostile work environment claim, the trooper cited acts that were facially sex-based, such as before her promotion being called the division bicycle, rumors that she flirted and used sex to her advantage, and rumors regarding her promiscuity. After her promotion, she faced additional rumors that she has used sex in the context of a male-dominated culture to obtain her position and claimed that division members expressed the view that “Division O as a whole does not accept females.” She was also accused of flirting with noncolleagues, told not to answer the radio while “douching,” and faced rumors that she had sex with supervisors.
In addition, she pointed to acts that appeared facially sex neutral such as being ostracized by her colleagues on a regular basis. When considered together with the facially sex-based incidents, a jury, said the court, “could find that other hostile acts, which were not explicitly sexual in nature, were nevertheless part of the sexual harassment against [the trooper] and contributed to a sexually hostile work environment.”
Further, said the court, a jury could also consider incidents that preceded her promotion, even though her EEOC charge, and therefore her claim in the district court, only alleged a claim while she was assigned to Division O. But even if it were only to consider the incidents that occurred while she was assigned to Division O, “a jury could still reasonably conclude that these incidents by themselves could prove a claim of a sexually hostile work environment, particularly in light of the evidence that ‘Division O as a whole does not accept females,’” the court observed.
Severe and pervasive. Nor did the court view the alleged conduct as isolated or fleeting. She claimed she was subjected to persistent rumors of sexual promiscuity in which she was supposedly having affairs with colleagues and supervisors; there was speculation she used sex to gain advantages, including her position as a K9 handler on Division O; the rumors were circulated by many of her coworkers; and they were accompanies by facially sex-neutral acts of harassment. Thus, said the court, there were fact issues as to the severity and pervasiveness of the conduct and summary judgment was inappropriate as to this claim.
Concurrence. In a short opinion, Judge Hartz concurred in the result and all of the opinion except that portion discussing the hostile work-environment claim that considered evidence of harassment before the trooper was promoted. “Where I differ from the opinion is that I do not believe that [the trooper] has established the necessary predicate for consideration of the pre-promotion evidence in resolving her claim of post-promotion harassment.” Explaining that she must show that the pre-promotion acts about which she complained were “part of the same actionable hostile work environment practice” as the post-promotion acts, Judge Hartz wrote “Perhaps the necessary connection can be made with respect to the pre-promotion harassment of Sanderson. But I would hold that the connection described at this point does not suffice.”
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