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Sanderson v. Wyoming Highway Patrol

United States District Court, District of Wyoming

December 5, 2018

DELSA BROOKE SANDERSON, Plaintiff,
v.
WYOMING HIGHWAY PATROL, STATE OF WYOMING, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Scotf W. Skavdahl, United States District Judge

         This matter comes before the Court on Defendant's Motion for Summary Judgment (ECF No. 30). Defendant contends Plaintiff has failed to make a prima facie case for or otherwise establish her claims and that Defendant is entitled to a judgment as a matter of law. The Court having considered the motion and the accompanying briefs and information, oral argument, and being otherwise fully advised, finds as follows:

         BACKGROUND

         This case involves Title VII claims by a demoted employee against Defendant Wyoming Highway Patrol. Plaintiff is one of a small number of female troopers with the Wyoming Highway Patrol (ECF No. 36 at 1). She has been a trooper since 2007 (id.). Prior to May 2015, Plaintiff received numerous positive reviews for her work, was nominated for Trooper of the Year in 2014, and was given a Colonel's Commendation Award (id.). In May 2015, Plaintiff was promoted to Division O, the executive protective detail, providing security to the governor and other state officials (id. at 2). Plaintiff was also trained as the patrol's first female K9 handler as part of this position (id.).

         After Plaintiffs promotion, things began to change. The parties dispute whether this was a result of Plaintiff s poor attitude or discrimination and harassment. The Court will reserve specifics for the Analysis section, but generally Plaintiff alleges she was ignored, harassed, singled out for punishment, and treated poorly compared to her male colleagues (id. at 2-3; 36-1-36-6). She contends she complained about this "unequal treatment" to superiors several times (ECF Nos. 36 at 5-6; 36-15; 36-4; 36-9; 36-1). Conversely, Defendant alleges Plaintiff was not a good fit for the division and was insubordinate, flippant, and unprofessional (ECF No. 31 at 5). On April 15, 2016, Plaintiff was summoned to a meeting and given a letter of expectations by supervisors (ECF Nos. 1 ¶ 34; 36-3 at 41). This meeting was interrupted, and Plaintiff was called into Colonel Kebin Heller's office (ECF Nos. 1 ¶ 34; 36-3 at 49). There she was given a letter of involuntary reassignment from Division O and the K9 handler position to a Trooper II position (ECF No. 36-3 at 49). This, in addition to the loss of prestige associated with being assigned to Division O, resulted in a reduction in pay. (id. at 58).

         Plaintiff initially filed an internal grievance, then withdrew that grievance to file a Charge of Discrimination with the Wyoming Fair Employment Program and the U.S. Equal Employment Opportunity Commission ("EEOC") (ECF No. 31-3). She received a right to sue letter on October 19, 2017 (ECF No. 1 at 12). On January 1, 2018, Plaintiff filed her complaint alleging sex[1] discrimination, hostile work environment based on sex, and retaliation (id. ¶¶ 46-62). Defendant filed this motion for summary judgment on October 29, 2018 (ECF No. 30). Plaintiff responded on November 13, 2018 (ECF No. 36). Oral argument was held on November 28, 2018.

         STANDARD OF REVIEW

         Summary judgment is appropriate where a movant shows "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) (emphasis added). "A dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve the issue either way. A fact is material if under the substantive law it is essential to the proper disposition of the claim." Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (internal quotations and citations omitted). "The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). The burden then shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. Id. "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477U.S. 317, 327 (1986). It is with these standards in mind that the Court reviews Defendant's Motion.

         ANALYSIS

         Plaintiffs claims stem from Title VII of the Civil Rights Act of 1964. Plaintiff alleges sex discrimination, hostile work environment based on sex, and retaliation. Defendant raises five arguments in support of summary judgment: (1) Plaintiff cannot establish a prima facie case for her discrimination claim because she has not shown "her demotion 'took place under circumstances giving rise to an inference of discrimination;'" (2) Plaintiff cannot establish a prima facie case on her retaliation claim because she has not shown a causal connection between the protected activity and the adverse action; (3) Plaintiff cannot show the proffered reasons for her demotion were pretextual; (4) Plaintiff failed to exhaust her administrative remedies on her retaliation claim; and (5) Plaintiff cannot establish her claim for hostile environment because she cannot show she was subject to severe or pervasive harassment based on her sex.

         Because Plaintiff does not provide direct evidence of discrimination or retaliation, and because the Court's review of the record reveals none, the relevant analysis is dictated by the McDonnell Douglas framework.[2] "A plaintiff may prove a violation of Title VII either by direct evidence of discrimination or retaliation, or by following the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." Conroy v. Vilsack, 707 F.3d 1163, 1171 (10th Cir. 2013). To satisfy the McDonell Douglas framework,

the plaintiff must first establish a prima facie case of discrimination or retaliation. Then, the defendant may come forward with a legitimate, nondiscriminatory or non-retaliatory rationale for the adverse employment action. If the defendant does so, the plaintiff must show that the defendant's proffered rationale is pretextual. This framework applies to both discrimination and retaliation claims.

Id. A plaintiff must make only a "de minimis showing" to establish a prima facie case of gender discrimination under the McDonnell Douglas framework. Bird v. W.Valley City, 832 F.3d 1188, 1200 (10th Cir. 2016). However, establishing pretext is more difficult. At the summary judgment stage, "summary judgment is warranted unless [Plaintiff] can show there is a genuine issue of material fact as to whether the proffered reasons are pretextual." Id. To establish pretext, a plaintiff must show that Defendant's "proffered nondiscriminatory explanations for its actions are so incoherent, weak, inconsistent, or contradictory that a rational factfinder could conclude [they are] unworthy of belief." Id. at 1202. Timing and the sequence of events leading up to an adverse employment action may also serve as evidence of pretext. Id. at 1204. "The inquiry goes to the subjective belief of those making the termination decision; '[t]he relevant inquiry is not whether the employer's proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs.'" Hare v. Denver Merck Mart, Inc., 255 F. Appx 298, 304 (10th Cir. 2007). Still, once a plaintiff establishes pretext, they need not prove discrimination as the real reason for the adverse action. See Id. at 305 ("discriminatory animus may be inferred from the simple showing of pretext.")

         The Court now turns to Defendant's first argument. Defendant contends Plaintiff cannot establish a prima facie case for her discrimination claim because she has not shown her demotion took place under circumstances giving rise to an inference of discrimination. The entirety of Defendant's briefing on this particular point is as follows:

As part of her prima facie case for disparate treatment, Trooper Sanderson must show that her demotion "took place under circumstances giving rise to an inference of discrimination." PVNF, 487 F.3d at 800. For retaliation, Trooper Sanderson must show "a causal connection between the protected activity and the adverse action." Medina, 413 F.3d at 1136. Trooper Sanderson cannot produce evidence to support either claim. In the absence of a prima facie case, Highway Patrol is entitled to summary judgment on these claims. Libertarian Party of N.M., 506 F.3d at 1309.

(ECF No. 31 at 9-10).

         This conclusion is insufficient. See Lints v. Graco Fluid Handlin (A) Inc., ___ F.Supp3d ___, 2018 WL 4976567 at *8 (D. Utah Oct. 15, 2018); see also Fed. R. Civ. P. 56(c)(1) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.") "It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work." Cardoza-Estremera v. Berrios, No. CV 16-2318 (ADC), 2017 WL 3098089, at *2 (D.P.R. July 20, 2017) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)); see also New Mexico Off-Highway Vehicle All. v. U.S. Forest Serv., 645 F. Appx 795, 803 (10th Cir. 2016) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs."); United States v. Ibarra-Diaz, 805 F.3d 908, 919 (10th Cir. 2015) ("Although Mr. Ibarra-Diaz invokes Rule 403 in a cursory fashion to argue that the statements were prejudicial, he never develops this line of argument or applies it to any specific statements. We will not craft such arguments for him." See United States v. Yelloweagle, 643 F.3d 1275, 1284 (10th Cir.2011) (noting that "[w]e cannot make arguments for" a party).)"

         Even if the Court were to reach the 'merits' of Defendant's argument, it would be unavailing. "[A] prima facie case of discrimination must consist of evidence that (1) the victim belongs to a protected class; (2) the victim suffered an adverse employment action; and (3) the challenged action took place under circumstances giving rise to an inference of discrimination." E.E.O.C. ...


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