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Eddy v. City and County of Denver

United States District Court, D. Colorado

March 26, 2018

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,
v.
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

          Marcia S. Krieger Chief United States District Judge

         THIS 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 #110).

         I. Jurisdiction

         Plaintiffs (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 were women.

         The Court exercises federal question jurisdiction with regard to these claims pursuant to 28 U.S.C. § 1331.

         II. Relevant Facts

         The 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 Court's discussion.

         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[1] are segregated by sex and housed in “pods.” Pods are structured in a variety of ways - open barracks, individual cells or shared cells.

         Male 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.

         Most 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.

         Deputies 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.

         According 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.

         A. Sexual Harassment of the Deputies by Inmates

         The 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.[2] 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.

         Such 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.).

         The 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 training.

         Approximately 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

         Despite 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.

         B. Disparate Assignment of the Deputies because they are female

         Some of 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.

         As 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[3].

         Similarly, 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.

         III. Standard of Review

         Rule 56 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 required?

         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. 2013).

         The 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).

         Motions 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).

         A 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).

         IV. Analysis

         The 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.

         A. Hostile Work Environment Claim by Deputies Dashawn Walker, Samone Walker, Hartzog, Montano and Casados

         As 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 inmates.

         1. Sex Discrimination and Hostile Work Environment - the legal standards

         Title 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 pervasive.

         Title 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).

         Moreover, 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 Cir. 1999).

         Furthermore, 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.

         Finally, 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.

         An 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).

         Actual 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).

         3. Application the evidence produced by each challenged deputy

         The 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 ...


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