Walker v. City and County of Denver

          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 ...