United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
SCOTT
T. VARHOLAK UNITED STATES MAGISTRATE JUDGE.
This
matter comes before the Court on the Motion for Legal Ruling
Regarding Applicability of Continuing Violation Doctrine to
Plaintiffs' Disparate Treatment Claims (the
“Motion”) [#141], filed by Defendant City and
County of Denver, Denver Sheriff Department. The Motion has
been referred to this Court. [#153] This Court has carefully
considered the Motion and related briefing, the parties'
brief oral argument on the Motion at a hearing on January 17,
2019 [#166], the entire case file and the applicable case
law. For the following reasons, this Court respectfully
RECOMMENDS that the Motion be
GRANTED and that the Court hold that the
continuing violation doctrine does not apply to
Plaintiffs' disparate treatment claims.
I.
BACKGROUND
Plaintiffs
are fourteen women who are current or former Deputies with
the Denver Sheriff Department. [#65 at ¶ 6] This case
arises out of the alleged failure of Defendant to take
reasonable steps to prevent sexual harassment against
Plaintiffs by male inmates while Plaintiffs performed their
duties, and Defendant's practice of discriminating
against Plaintiffs with respect to job assignments and other
terms and conditions of their employment. [See
generally #65]
Particularly
relevant here, Plaintiffs allege that Defendant has
disproportionately assigned Plaintiffs and other female
deputies to the most dangerous and demanding deputy
assignments, while their male counterparts are posted to more
desirable assignments that require little to no inmate
supervision, and less overtime and weekend work.
[Id. at ¶¶ 36-41, 46-51] Plaintiffs
explain that direct supervision of inmates in pods is the
most dangerous and difficult deputy assignment, particularly
when it involves working in open, larger pods. [Id.
at ¶¶ 39-40]
According
to Plaintiffs, Defendant has a general practice and explicit
policy of only assigning female deputies to supervise female
inmates. [Id. at ¶ 42] For example, most
Plaintiffs were frequently assigned to direct supervision of
female inmates in Building 21 as their regular work
assignment. [Id.] Building 21 is known as the most
difficult direct supervision assignment because of its
layout, consisting of open pods that are larger than most
other pods administered by Defendant, and because it is
generally overcrowded and understaffed, resulting in an
above-average inmate to deputy ratio. [Id. at ¶
44] Building 21 is also a particularly demanding assignment
because it houses inmates with behavioral, violence, and
mental health issues alongside the general population.
[Id.] On the rare occasions when male deputies are
assigned to female pods, male deputies are not required to
perform the same duties as female deputies, even though
female deputies in male pods are expected to carry out the
same duties as their male counterparts. [Id. at
¶ 55-56]
Even
when Plaintiffs receive more desirable assignments, they are
often subsequently reassigned to positions involving more
direct inmate supervision. [Id. at ¶¶
46-50] Several Plaintiffs have applied for special
assignments requiring less direct inmate supervision, but
those positions have been given to less qualified male
deputies instead. [Id. at ¶¶ 45, 51] When
Plaintiff Deputy Rasmussen requested assignment to the scout
car, an assignment with significantly less direct inmate
supervision, she was disparaged for thinking that she could
do the job as a woman. [Id. at ¶ 45]
Apart
from the greater demands and risks placed on female deputies
by Defendant's assignment practices, these practices also
jeopardize the advancement prospects of Plaintiffs and other
female deputies. [Id. at ¶ 57] With fewer
opportunities to gain wide-ranging experiences, including
through special assignments, Plaintiffs have less leverage
when seeking promotions and other career advancements.
[Id.]
Plaintiffs
filed suit alleging hostile work environment and disparate
treatment claims. [#65] On October 19, 2018, Defendant filed
the instant Motion. [#141] Plaintiffs have filed a response
[#146] and Defendant has replied [#156].
II.
ANALYSIS
The
question before the Court is whether the continuing violation
doctrine applies to Plaintiffs' disparate treatment
claims, such that Plaintiffs may recover for discriminatory
acts that occurred prior to the statutory limitations period.
[See generally #141]; see also Davidson v. Am.
Online, Inc., 337 F.3d 1179, 1183 (10th Cir. 2003). As
discussed below, the Court believes that Plaintiffs advance a
persuasive argument. Nevertheless, the Court is bound by
Tenth Circuit authority and, based on that authority, the
Court must conclude that the continuing violation doctrine
does not apply to Plaintiffs' disparate treatment claims.
A.
Continuing Violation Doctrine and Disparate Treatment
Claims
“Under
Title VII, a person must file a charge of discrimination with
the [Equal Employment Opportunity Commission
(“EEOC”)] within 300 days of the alleged unlawful
employment practice before filing a lawsuit in federal
court.” Payan v. United Parcel Serv., 905 F.3d
1162, 1169 n.1 (10th Cir. 2018) (citing 42 U.S.C. §
2000e-5(a)). The EEOC filing “is a prerequisite to a
civil suit under Title VII and a claim is time-barred if it
is not filed within these limits.” Davidson,
337 F.3d at 1183. But, under certain circumstances, “a
plaintiff may recover for discriminatory acts that occurred
prior to the statutory limitations period if they are part of
a continuing policy or practice that includes the act or acts
within the statutory period.” Id. at 1183
(quotation omitted); see also Burkley v. Corr. Healthcare
Mgmt. of Okla., Inc., 141 Fed.Appx. 714, 716 (10th Cir.
2005) (“The continuing violation doctrine permits a
court to look backwards to the entirety of a continuing wrong
to assess its cumulative effect, so long as an injurious act
falls within the statute of limitations period.”). To
establish a continuing violation, a plaintiff must
demonstrate “either that (1) a series of related acts
was taken against [her], with one or more of those acts
occurring within the limitations period, or (2) the defendant
maintained a company-wide policy of discrimination both
before and during the limitations period.”
Davidson, 337 F.3d at 1183-84.
The
Supreme Court limited this rule in National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101 (2002). In
Morgan, “the Supreme Court held that a
continuing violation theory of discrimination is not
permitted for claims against discrete acts of discrimination,
such as termination, failure to promote, denial of transfer,
or a refusal to hire.” Id. at 1184. Because
“discrete acts are easily identifiable and individually
actionable, ” the Supreme Court reasoned that such acts
occurring “outside of the limitations period, even
though related to those occurring within the period, are not
actionable.” Croy v. Cobe Labs., Inc., 345
F.3d 1199, 1202 (10th Cir. 2002) (citing Morgan, 536
U.S. at 114). Accordingly, “[e]ach discrete
discriminatory act starts a new clock for filing charges
alleging that act.” Morgan, 536 U.S. at 113.
In contrast, the Supreme Court found that the unlawful
employment practices underlying a hostile work ...