United States District Court, D. Colorado
TERRI EDDY, REBECCA ESQUIBEL, DENITA HARTZOG, GIOVANNA KEMP, LISA MAES, PEGGY MAJOR, COURTNEY MICKELSON, SADIE MONTANO, PAULA PURDY, STACI WRIGHT, SAMONE WALKER, DASHAWN WALKER, THERESA DENBOW, CESQUA RASMUSSEN, and RHONDA CASADOS, Plaintiffs,
CITY AND COUNTY OF DENVER, DENVER SHERIFF'S DEPARTMENT, a Municipal corporation, No.-STV
OPINION AND ORDER RE: DEFENDANT'S MOTION FOR
PARTIAL SUMMARY JUDGMENT
S. Krieger Chief United States District Judge
MATTER comes before the Court pursuant to a Motion
for Partial Summary Judgment (the “Motion”) filed
by Defendant City and County of Denver, Denver Sheriff's
Department (the “Sheriff's Department”)
(#93). The Court has also reviewed and
considered Plaintiffs' Response (#98),
the Sheriff's Department's Reply
(#108), and supplemental exhibits submitted
by Plaintiffs (#109 and
(collectively, the “Deputies”) bring two claims
under Title VII of the Civil Rights Act, 42 U.S.C. §
2000e et seq. They contend that the Sheriff's
Department violated Title VII in two ways. First, the
Sheriff's Department exposed them to a hostile work
environment that included pervasive sexual harassment by
inmates, at two Denver jail facilities, and failed to take
reasonable steps to mitigate or prevent the harassment.
Second, the Sheriff's Department unlawfully assigned the
Deputies to inferior and objectionable posts because they
Court exercises federal question jurisdiction with regard to
these claims pursuant to 28 U.S.C. § 1331.
following facts are undisputed or where disputed are viewed
in the light most favorable to the nonmovants, the Deputies.
More factual details are provided as necessary in the
Deputies are current or former deputy sheriffs who are
employed by Denver, and who have worked as corrections
officers in the Denver County Jail (the “Jail”)
or the Denver Downtown Detention Center (the
“Center”). At the Jail and the Center,
inmates are segregated by sex and housed in
“pods.” Pods are structured in a variety of ways
- open barracks, individual cells or shared cells.
inmates are housed at both the Jail and the Center, assigned
to different pods based on how dangerous they are perceived
to be or the severity of their charges/offense. Typically,
more dangerous inmates and/or inmates charged with more
serious crimes are kept in closed pods separate from less
dangerous inmates. Similarly, male inmates with significant
mental health disorders typically are removed from the
general population units and housed separately.
female inmates are housed in Building 21 at the Jail,
although a handful are in smaller pods or units at the
Center. They are not segregated based on perceptions of how
dangerous they are, their charges/offenses, or their mental
health status. The housing units in Building 21 are
“open” without individual or shared cells. The
workload for deputies working in Building 21 is heavier and
more stressful than for deputies working in other buildings.
This is caused by low staffing levels, lack of segregation of
inmates based on danger level, serious of charges/offense or
mental health status, and the inability to manage inmates by
using individual or shared cells. In addition, Building 21
operates more like a “jail within a jail, ” with
deputies being required more varied tasks than deputies who
work in other buildings.
are assigned to two broad categories of posts - general
inmate supervision posts and special assignment posts. In
general inmate supervision posts, deputies continuously
monitor and/or supervise inmates in a specified housing unit
or building. In contrast, special assignment posts are those
that are outside of the housing units, such as in the mail
room, training academy, kitchen, etc. Special
assignment posts generally - although not always - involve
less inmate supervision responsibilities and less stress than
do general inmate supervision posts, and consequently they
tend to be more popular among deputies.
to Sheriff's Department policy, deputies are to be
assigned to buildings and units within the Jail and the
Center without regard to sex. However, the performance of
certain tasks is limited by sex. Female deputies are not
permitted to conduct strip searches of male inmates, and male
deputies are not permitted to conduct pat down or strip
searches of female inmates. Except for the special assignment
Intake post, where strip searches necessarily occur, deputies
are eligible to work any post regardless of his/her sex.
Within posts, however, there are requirements that a certain
number of on-duty deputies be male or female, in order to
accommodate strip searches and pat down searches. For
example, in Building 21 where the inmate population is all
female, there must be at least two female deputies on duty.
Sexual Harassment of the Deputies by Inmates
Deputies experience pervasive sexual harassment by male
inmates housed in male units at the Jail and in the Center.
Inmates routinely make lewd and sexualized remarks to the
Deputies, expose their genitals to the Deputies, and
masturbate in front of the Deputies with the purposeful
intention of offending or embarrassing them. The record also
contains description of on one incident where a female Deputy
was grabbed by an inmate in a sexual manner. Individual
Plaintiffs describe different frequencies to these events,
but many state that they occur on a weekly or more frequent
basis, and some Deputies describe the conduct as having
gotten worse over a period years.
inmate behavior violates the Sheriff's Department policy
and can result in inmate disciplinary action. A deputy who
witnesses a violation can document and report the
inmate's behavior by filling out an Offense-in-Custody
(“OIC”) form. A violation can result in a
reprimand, loss of privileges, corrective confinement, or
loss of good time credit. Indecent exposure and public
masturbation, which is treated as a variant of indecent
exposure, are classified as Class 4 offenses for first time
offenders (potentially punishable by separation from the jail
population and a loss of privileges of three to ten days),
and Class 3 offenses for repeat offenders (potentially
punishable by separation and a loss of privileges of five to
twenty days). As an alternative to “write-up”
using the OIC form, deputies can impose the informal
punishment of a constructive work assignment involving
tedious or unpleasant chores or tasks (sweeping, mopping,
cleaning trash cans, etc.).
Deputies have reported the sexually harassing behavior of
inmates, and the failure of discipline to their superiors.
Some were informally told by supervisors that tolerating
sexually harassing behaviors by inmates - including offensive
comments, indecent exposure and public masturbation - was
“part of the job, ” and they should accept that
sort of environment if they wanted to stay in corrections.
Tolerance of, or indifference to, sexually harassing
behaviors by inmates has also been was stressed in new deputy
750 OIC forms have been submitted in recent years, including
forms documenting and reporting approximately 100 instances
of exhibitionist masturbation. But the disciplinary process
has not been vigorously pursued. On some occasions only
modest sanctions were imposed or the sanction was suspended.
Some Deputies were informally discouraged from reporting
violations through the OIC process, and instead, they were
encouraged to discipline sexually harassing behaviors through
the use of constructive work assignments. This alternative
proves ineffective in punishing and deterring future conduct,
however, because (1) some inmates enjoy constructive work
assignments that allow them to leave their cells, and (2)
enforcement requires the deputy who was the target of the
sexually harassing behavior to supervise the inmate
responsible for it, which leads to more or the same behavior.
Additional evidence produced by the Deputies suggests that
repeated complaints to supervising corrections officers, (1)
the Sheriff's Department has not promulgated or
implemented any policies specifically intended to address and
prevent sexual harassment of female deputies by the inmates,
including (without limitation) exhibitionist masturbation;
(2) the Sheriff's Department has not trained deputies or
supervisory staff on how to report and discipline sexually
harassing behavior by inmates; (3) supervisors at the
Sheriff's Department pressured the Deputies to report
sexually harassing behavior by inmates as “information
only” violations, thus avoiding the disciplinary
process altogether, and (4) the Sheriff's Department does
not effectively enforce its prohibitions on sexually
harassing conduct current on the books by seriously
adjudicating reports of such conduct and assessing
appropriate discipline where inmates are found to have
engaged in it.
Disparate Assignment of the Deputies because they are
Deputies claim that they were assigned to Building 21 simply
because they were female. Prior to 2015 or 2016, deputy
supervisors at the Sheriff's Department preferred to
assign only female deputies to Building 21 posts. This was
done to protect male deputies from being accused of sexual
assault or other crimes by the female inmates housed there.
Some of the supervisors also preferred to staff only male
deputies in all-male units due the prevalence of fights
between male inmates. If female deputies were assigned to
non-housing posts that did not involve supervision of
inmates, they frequently were pulled off of such posts and
sent to Building 21 to increase female staffing.
noted, being staffed at Building 21 posts was significantly
more stressful and difficult than most other assignments, and
that continuous staffing at such posts caused significant
mental anguish and burnout. Building 21 experienced chronic
understaffing plus it lacked specificity in task assignment
to deputies so each deputy was required to perform virtually
all required tasks (intake, kitchen duty, transportation,
etc.), that would be performed by specialized units
in the rest of the Jail and the Center. The evidence of the
undesirability of Building 21 posts is found in testimonial
evidence from the Deputies and expert opinion.
the Deputies have produced evidence that many of them sought
special assignment posts in the Jail and Center generally,
which (as discussed above) normally are non-housing positions
involving significantly less stress and difficulty than
housing posts. Other Deputies have produced testimonial
evidence that they were excluded from more favorable special
assignment posts in favor of male deputies. These Deputies
have come forward with evidence that they applied for special
assignment positions several times over the years and were
turned down in favor of less experienced and more junior male
deputies. There is at least some testimonial evidence that
the rejected Deputies have never received explanation for why
they were repeatedly passed over for special assignments.
Standard of Review
of the Federal Rules of Civil Procedure facilitates the entry
of a judgment only if no trial is necessary. See White v.
York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Thus, the primary question presented to the Court in
considering a motion for summary judgment: is a trial
is required if there are material factual disputes to
resolve. As a result, entry of summary judgment is authorized
only “when 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); Savant Homes,
Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016). A
fact is material if, under the substantive law, it is an
essential element of the claim. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
genuine if the conflicting evidence would enable a rational
trier of fact to resolve the dispute for either party.
Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir.
consideration of a summary judgment motion requires the Court
to focus on the asserted claims and defenses, their legal
elements, and which party has the burden of proof.
Substantive law specifies the elements that must be proven
for a given claim or defense, sets the standard of proof, and
identifies the party with the burden of proof. See
Anderson, 477 U.S. at 248; Kaiser-Francis Oil Co. v.
Producer's Gas Co., 870 F.2d 563, 565 (10th Cir.
1989). As to the evidence offered during summary judgment,
the Court views it the light most favorable to the non-moving
party, thereby favoring the right to trial. See Tabor v.
Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013).
for summary judgment generally arise in one of two contexts -
when the movant has the burden of proof and when the
non-movant has the burden of proof. Each context is handled
differently. When the movant has the burden of proof, the
movant must come forward with sufficient, competent evidence
to establish each element of its claim or defense.
See Fed. R. Civ. P. 56(c)(1)(A). Presumably, in the
absence of contrary evidence, this showing would entitle the
movant to judgment as a matter of law. However, if the
responding party presents contrary evidence to establish a
genuine dispute as to any material fact, a trial is required
and the motion must be denied. See Leone v. Owsley,
810 F.3d 1149, 1153 (10th Cir. 2015); Schneider v. City
of Grand Junction Police Dep't, 717 F.3d 760, 767
(10th Cir. 2013).
different circumstance arises when the movant does not have
the burden of proof. In this circumstance, the movant
contends that the non-movant lacks sufficient evidence to
establish a prima facie case. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). The moving party must
identify why the respondent cannot make a prima
facie showing; that is, why the evidence in the record
shows that the respondent cannot establish a particular
element. See Collins, 809 F.3d at 1137. If the
respondent comes forward with sufficient competent evidence
to establish a prima facie claim or defense, then a
trial is required. Conversely, if the respondent's
evidence is inadequate to establish a prima facie
claim or defense, then no factual determination of that claim
or defense is required and summary judgment may enter.
See Shero v. City of Grove, Okla., 510 F.3d 1196,
1200 (10th Cir. 2007).
Sheriff's Department moves for summary judgment on the
hostile work environment claim brought by Deputies Dashawn
Walker, Samone Walker, Hartzog, Montano and Casados, and on
the disparate-treatment claim in its entirety. With respect
to each, the Sheriff's Department argues that the
Deputies have failed to come forward with sufficient evidence
to make a prima facie of a cognizable claim.
Hostile Work Environment Claim by Deputies Dashawn Walker,
Samone Walker, Hartzog, Montano and Casados
explained above, the Deputies generally contend that they
each were exposed to widespread sexually harassing behavior
by male inmates, including lewd and offensive remarks,
indecent exposure, and public masturbation. The Deputies
further contend that the Sheriff's Department did not
take sufficient steps to prevent or mitigate this conduct by
the male inmates. For a majority of the Deputies, the
Sheriff's Department has not moved for summary judgment
on their hostile work environment claims, apparently
conceding that there are questions of disputed material fact
with respect to those particular Deputies. However, for each
of these five Deputies, the Sheriff's Department contends
that she has not and cannot come forward with evidence
sufficient to establish a prima facie claim against
the Sheriff's Department for the third-party conduct of
Sex Discrimination and Hostile Work Environment - the legal
VII prohibits discrimination based on sex. One form of sex
discrimination is subjecting an employee to sexual harassment
a sexually hostile or abusive work environment. Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-67 (1986);
Nieto v. Kapoor, 268 F.3d 1208, 1217-18 (10th Cir.
2001). To establish a claim for hostile work environment,
each Deputy must present evidence to show that (i) she is a
member of a protected group; (ii) she was subject to
unwelcome harassment, intimidation, or ridicule; (iii) the
such harassment was based on her protected status; (iv) that
the harassment was severe and pervasive, in both an objective
and subjective sense, and (v) the harassment had the effect
of altering a term, condition, or privilege of her employment
and created an abusive working environment. Lounds v.
Lincare, Inc., 812 F.3d 1208, 1222 (10th Cir. 2015). As
to these five Deputies, the Sheriff's Department argues
that there is insufficient evidence to establish the fourth
of those elements - that the harassment was severe and
VII is not a “general civility code” and a
plaintiff may not predicate a hostile work environment claim
on the “run-of-the-mill boorish, juvenile, or annoying
behavior that is not uncommon in American workplaces.”
Id.; accord Morris v. City of Colo.
Springs, 666 F.3d 654, 663-64 (10th Cir. 2012). Instead,
“[a]n employer creates a hostile work environment when
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.”
Hall v. U.S. Dep't of Labor, 476 F.3d 847, 851
(10th Cir. 2007) (internal quotations omitted). Isolated or
sporadic sex-based incidents of harassment will not be
sufficient to establish a hostile work environment clam.
Morris, 666 F.3d at 666; Sprague v. Thorn
Americas, Inc., 129 F.3d 1355, 1365 (10th Cir. 1997).
it is important to recognize that the severity and
pervasiveness evaluation is inherently fact-dependent; there
is not, and cannot, be a precise test for the determination.
Instead, the determination is made by looking at the totality
of the circumstances. See Lounds, 812 F.3d at 1222.
“[T]he word ‘pervasive' is not a counting
measure. The trier of fact utilizes a broader contextual
analysis” that carefully considers each instance as a
component of the overall working environment. Smith v.
Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1415 (10th
Cir. 1997); accord Tademy v. Union Pac. Corp., 614
F.3d 1132, 1143 (10th Cir. 2008). Courts consider a variety
of factors, including 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. Smith, 129 F.3d at 1415; O'Shea
v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1098 (10th
a court considering a hostile work environment claim must
assess whether the work environment is both subjectively
and objectively hostile or abusive. MacKenzie v.
City & Cty. of Denver, 414 F.3d 1266, 1280 (10th
Cir. 2005). It is necessary for the plaintiff to
subjectively view the work environment to be abusive.
Morris, 666 F.3d at 664-65. In addition, the
environment must be deems hostile by a reasonable employee
working in the same or similar circumstances. See,
e.g., Lounds, 812 F.3d at 1222-23;
Smith, 129 F.3d at 1413.
and notably in this case, incidents of sexual harassment
directed at individuals other than the plaintiff bringing the
particular claim are relevant. The evidence of a general work
atmosphere can be an important factor in evaluating a hostile
work environment claim. Hicks v. Gates Rubber Co.,
833 F.2d 1406, 1415-16 (10th Cir. 1987); accord
Hirase-Doi v. U.S. West Commc'ns, Inc., 61
F.3d 777, 782 (10th Cir. 1995), abrogated on other
grounds by 524 U.S. 742 and 524 U.S. 775. But
for sexual harassment targeting other employees to be
considered to be the “general work atmosphere, ”
a plaintiff must be aware of the offending behavior directed
at others. Tademy, 614 F.3d at 1146;
Hirase-Doi, 61 F.3d at 782.
employer may be held liable for the sexual harassing conduct
of nonemployees if the employer “fail[ed] to remedy or
prevent a hostile or offensive work environment of which
management-level employees knew, or in the exercise of
reasonable care should have known.” Lockard v.
Pizza Hut, 162 F.3d 1062, 1072-74 (10th Cir. 1998). This
essentially amounts to a negligence analysis. Turnbull v.
Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir.
2001). That negligence analysis then can be divided into two
separate inquiries, looking “first, into the
employer's actual or constructive knowledge of
harassment, and second, into the adequacy of the
employer's remedial and preventative responses.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673
(10th Cir. 1998).
knowledge of harassment occurs when the plaintiff has
reported harassment to management-level employees. Harsco
Corp. v. Renner, 475 F.3d 1179, 1188 (10th Cir. 2007).
Constructive knowledge occurs when “the incidents of
harassment were so egregious, numerous, and concentrated as
to add up to a campaign of harassment that the employer will
be culpable for failure to discover what is going on.”
Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d
642, 652 (10th Cir. 2013). Essentially, constructive
knowledge will be imputed to an employer when the harassing
conduct is so egregious and widespread that management either
is aware of it or is incompetent for not discovering it.
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 675
(10th Cir. 1998).
Application the evidence produced by each challenged
Court question of whether there is evidence to show that each
of the five Deputies have been subjected to a hostile work
environment will be addressed on an individual basis.
However, the question of whether there is evidence to show
that the Sheriffs Department has adequate actual or
constructive knowledge that its female deputies are/were