Cynthia DUNCAN, Plaintiff,
v.
MANAGER, DEPARTMENT OF SAFTY, CITY AND COUNTY OF DENVER, and David Michaud, individually, Defendants.
No. CIV.A. 99-M-1299.
United States District Court, D. Colorado.
May 8, 2003.*1127 Patrick Francis Carrigan, Faegre & Benson, LLP-Boulder Colorado, Boulder, CO, David Joel Dansky, Chambers Dansky & Mulvahill, Denver, Co, Leslie C. Hansen, Leslie C. Hansen, P.C., Denver, CO, for Cynthia Duncan.
*1128 Charles L. Casteel, Janet Savage, Davis, Graham & Stubbs, Denver, CO, Daniel E. Friesen, Hale Friesen, LLP, Denver, CO, Terrance R. Kelly, James E. Hubbell, Kelly/Haglund/Garnsey & Kahn LLC, Fenver, CO, for Denver Dept. of Safety Manager.
ORDERS ON MOTIONS FOR SUMMARY JUDGMENT
MATSCH, District Judge.
Cynthia Duncan began her employment with the Denver Police Department ("DPD") in 1979. Her first assignment after graduating from the Denver Police Academy was in District 4 where she served until 1984 when she transferred to District 1. In 1988, she became a detective and was assigned to the Crimes Against Property Department within the Detective Bureau. She transferred to the Crimes Against Persons Department in a career development move in 1991 where she served until July, 1995, when she moved to the Internal Affairs Bureau. Ms. Duncan was promoted to Sergeant. Following normal practice, that promotion required that she be reassigned to street, duties and she went back to District 4.
On April 14, 1998, Ms. Duncan filed a charge of sex discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC"). In that charge, she made the following allegations:
I. PERSONAL HARM: During the course of my employment as a Police Officer, I have been subjected to sexual harassment, retaliation and different terms and conditions of employment.
II. RESPONDENT'S DEFENSE: Despite my complaints to my superiors and the Department of Internal Affairs, no effective action has been taken.
III. DISCRIMINATION STATEMENT: I believe that I have been discriminated against because of my gender, female, and in retaliation for my having complained of discrimination, inasmuch as:
a. My co-workers circulated sexual gossip about me and made sex innuendos about my having affairs with several superiors.
b. An anonymous letter with sexual references about me was sent to the home of one of my co-workers, with threats of sending one to my house, stating that receipt of the letter will cause my husband to kill me.
c. I was placed under surveillance by one of my co-workers.
d. My supervisor told me that I would have to submit a picture of my bruised buttocks, if I wanted to file a complaint of physical assault against my co-worker.
e. Derogatory names were used by one of my supervisors in refer female anatomy.
f. One of my supervisors has a history of using derogatory comments about women, as does one of my peers.
g. Other female officers are also harassed.
h. The harassment is pervasive and department-wide and represents a continuing pattern of harassment.
Ms. Duncan was transferred to the DPD Training Academy in August, 1999, and in December, 1999, she was transferred to Traffic Operations in the Photo Radar Unit. Ms. Duncan went on medical leave in June, 2000,[1] and filed the complaint in this *1129 lawsuit on July 8, 1999. Ms. Duncan was given a disability retirement in the summer of 2000.
The defendants filed motions for summary judgment which have been fully briefed with the submission of deposition testimony and exhibits. Oral argument was heard. There are many disputes concerning the facts. Accordingly, all of the proposed evidence must be considered in the light most favorable to the plaintiff without making credibility determinations on disputed testimony.
The City contends that the Title VII claims should be dismissed because they are barred by the time limitation requiring that the administrative charges must be filed no later than 300 days following discriminatory or retaliatory conduct. Accordingly, it is argued that the court should consider only conduct occurring on or after June 18, 1997. Both defendants argue that the claims under 42 U.S.C. § 1983 are barred by the two-year statute of limitations. Additionally, both defendants contend that the plaintiffs proffered evidence is not sufficient for a reasonable jury to find liability against either of them for gender discrimination based on a hostile work environment or for retaliation for complaints because the complained of conduct was not sufficiently severe and pervasive to affect Ms. Duncan's terms and conditions of employment and because no causal connection has been shown between her complaints and any subsequent adverse employment action.
The time limitations under Title VII must be considered under the continuing violation doctrine announced by the Supreme Court in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
In that case, the Court recognized a difference between discrete discriminatory and retaliatory acts and a hostile work environment claim, holding that because a hostile work environment requires proof of repeated discriminatory conduct, the claim is not necessarily barred by the statutory time limitations. More specifically, the court held that:
A charge alleging a hostile work environment claim, however, will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period.
Id. at 122, 122 S.Ct. 2061.
In applying that ruling, this court must analyze the proposed evidence to determine whether the plaintiff can establish the essential elements of a hostile work environment claim as developed by the opinions deciding Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) and Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
As Justice Thomas wrote in Morgan, the statutory language of Title VII prohibits discriminatory employment practices and a hostile sexual work environment becomes a discriminatory practice as a result of "the cumulative [e]ffect of individual acts." Morgan at 115, 122 S.Ct. 2061. In Harris, the Court repeated the operative language from Meritor that Title VII is violated 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 *1130 abusive working environment." Harris at 21, 114 S.Ct. 367 (internal quotation marks omitted). The statute of limitations defense and the viability of the plaintiffs Title VII claim in this case depend upon a detailed factual analysis. The Tenth Circuit Court of Appeals opinion in Gross v. Burggraf Const Co., 53 F.3d 1531 (10th Cir.1995) is helpful as guidance.
In her response brief, the plaintiff has listed 58 events claimed to be acts of gender harassment with references to evidentiary support for them. These allegations are grouped according to Ms. Duncan's years of service in her departmental assignments. The City's briefs respond to these allegations with references to the evidentiary record regarding DPD's responses to the complaints made by the plaintiff during her career. A chart summarizing these submissions, attached as Appendix A, demonstrates that the plaintiff is unable to connect these events into a timely, actionable discriminatory employment practice.[2]
The most significant conduct occurred during Ms. Duncan's first assignment to Division 4. Her descriptions of the conduct of a Captain and co-workers could be considered to be of sufficient severity, frequency and hostility as to be actionable as a discriminatory work environment. There was no continuing pattern of the same types of events when she was in District 1 and she advanced her career by becoming a detective and received a promotion to sergeant.
The events occurring after 1984 are sporadic and disconnected with the exception of the rumors concerning improper relationships between the plaintiff and command officers. Rumors of heterosexual intimacy will not ordinarily be considered gender discrimination because both men and women are victimized. The argument here is that such rumors disadvantage women in the workplace when the implication is that the only way women can advance their careers is by granting sexual favors to the men empowered to make promotion decisions. The clearest evidence of rumors about Ms. Duncan and her superior officers are two anonymous letters, one addressed to the Mayor. Read in full context, those messages are political attacks on the leadership of the DPD and their abuse of authority in which their conduct with Ms. Duncan is but an example.
The truth or falsity of these rumors of impropriety cannot be determined on this record. The plaintiff has admitted frequent telephone calls, luncheon engagements and other contacts which could easily be interpreted as indications of romantic relationships. When there is a factual basis for a reasonable inference of impropriety as a result of a woman's voluntary conduct, it would not be reasonable to find that other workers' comments and suggestions about such a relationship were motivated by gender discrimination or a hostility toward women in the workplace. Moreover, there is no showing that these persistent rumors caused any *1131 adverse employment decisions or altered the terms and conditions of the plaintiffs employment. The rumors were about her special relationship with the men who had authority to advance her career and there is nothing to suggest that they were influenced negatively against the plaintiff. Notably, Heather Coogan testified that she too was subject to similar rumors during her long career with the DPD and she rose to the rank of Deputy Chief of Police, second in command of the department.
Ms. Duncan suggests that she did not advance to lieutenant because of some possible bias against her by unnamed persons but her evidence is wholly speculative on this point.
As the events complained of do not constitute one unlawful employment practice under Morgan, those events which occurred before June 18, 1997 are untimely. Because Ms. Duncan grouped the events into blocks consisting of several years, based on the record provided, she has only established a few listed events after June 18, 1997, none of which is actionable. For example, as previously discussed, the rumors about her and command officers were gender neutral. Further, the sergeant who made remarks about her at the Breakfast King Restaurant was investigated and disciplined and the subordinate officer who made the crude remark in June, 1999 was reprimanded.
The DPD had a policy prohibiting sexual harassment and an enforcement procedure for complaints. Ms. Duncan made informal complaints to supervisors and filed formal complaints with the Internal Affairs Bureau ("IAB"). Except for the first event listed by Ms. Duncan, each of the IAB complaints was investigated and disciplinary action was taken against proven offenders. The plaintiff complains that some investigations were inadequate. Illustratively, she says that her complaint against another officer for slapping her buttock was not investigated when she refused to permit photographing the bruises because she did not want the files to include such a picture. Photographing a physical injury is a standard procedure and Ms. Duncan's refusal prevented the IAB from obtaining corroborating evidence of the alleged conduct. That was not an unreasonable response. The plaintiff has failed to demonstrate that the disciplinary actions taken were not effective to prevent reoccurrences of misconduct by the offenders.
The plaintiff asserts that the City failed to provide adequate training to prevent violation of its policy. The evidence does not support that claim.
The City is not liable for the sporadic and individual workers' offensive misconduct under Faragher, supra and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
The plaintiff does not have a viable claim for a Fourteenth Amendment denial of equal protection against the City for the same reasons that defeat her Title VII claims, although, based on the two-year statute of limitations, only incidents on or after July 8, 1997 are timely.
In the Morgan opinion, the Court ruled that the defendant employer in a hostile sexual harassment case may raise the equitable defenses of laches, waiver and estoppel. As shown in Appendix A, Ms. Duncan does not remember many of the specifics of the events complained about over nearly twenty years of her employment. The City is unable to obtain evidence to rebut or contradict the plaintiffs testimony when she is unable to be specific about time, places and persons present. Some of the officers are now unavailable. It would be inequitable to present Ms. Duncan's accounts of these events to a jury when the defendant cannot *1132 produce evidence to challenge her testimony when that inability results from Ms. Duncan's unreasonable delay in filing her EEOC charges and this civil action.
David Michaud seeks dismissal of the Fourteenth Amendment claim against him on the same grounds as the City and on the additional claim that he is entitled to qualified immunity. The essential element of the case against Mr. Michaud is that during his tenure as Chief of Police he failed to take effective action to prevent the sexual harassment of Ms. Duncan and other women officers. The findings concerning the adequacy of the City's policy, as summarized in Appendix A, defeat that claim. The proffered evidence is insufficient to establish that David Michaud directly discriminated against Ms. Duncan or took any retaliatory action against her. Mr. Michaud's alleged actions regarding the rumors were gender neutral and directed to dispelling the rumors, only one of which involved Ms. Duncan. His action in transferring Ms. Duncan, with the concurrence of Deputy Chief Heather Coogan, to the Academy was for her safety and Ms. Duncan testified the only vacant position there at the time was a technician spot. Upon the foregoing, it is
ORDERED that the City's Motion for Summary Judgment and David Michaud's Motion for Summary Judgment are granted. The clerk will enter a judgment dismissing the plaintiffs claims against both defendants with an award of costs to the defendants.
APPENDIX A
CHART SUMMARIZING THE PLAINTIFF'S ALLEGATIONS OF HARASSING EVENTS
Duncan v, Manager, Dept. of Safety et al.
Civil Action No. 99M1299
No. Assignment Allegations of Paraphrased Testimony Complaints and Comment
Harassing Events and Exhibits Responses
1 District Four "Duncan was sexually While still assigned a training She told her TO No date given.
(1979-1984) assaulted by a officer ("TO") and working the next day, Assignment
male police officer in late, she walked out the they went down with a TO was
a police department back door and went to her to Internal at the beginning
parking lot." car. A large officer who was Affairs and "I of her
hiding in the back of the was basically employment.
building came at her, started told to shut up."
touching her, pulling on her
clothes, pushing her to him.
She was scared and finally
got to her car.
2 District Four "Duncan received Anonymous letters from Based on Duncan's No date given.
(1979-1984) letters in her police within the department were can's testimony, Response
department mail box put in her locker about how there was an appears to have
indicating the author they were going to do despicable investigation been
was going to cable acts to her, then cut up about the letters reasonable.
rape her, kill her, her body and throw the she was receiving
cut up her body and parts over Denver. They found
scatter the pieces one of the authors
around the city." They were triggered by and fired
hatred for police women. him. (No testimony
cited on
It was believed there were who initiated
two different authors of two investigation.)
two different letters. One of the
authors was discovered and
fired. No one else was
found.
3 District Four "Police officers, with "You would get in your police Duncan did not No dates given.
(1979-1984) whom Duncan was car, a policeman would report and it
partnered, groped have his hand down on the was not the subject One officer was
her while on duty by seat, when you sit down, he of an IAB fired. The other
*1133
placing their hands, would play with your rear investigation. It officer who
palm up, in her car end." is not clear why ceased his conduct
seat so that she one officer was is the same
would sit on the The plaintiff named two fired. officer who was
open hand. officers. One was fired. fired in No. 2.
The other one stopped when
she told him to stop.
Those were the only times
that happened to her. It
was attempted many more
times but she was smart
enough so they would not
get away with it.
"... it happened with other
people. It is endless. I
can't remember everybody.
It was a long time ago."
She "was brand new" at the
time.
4 District Four "A fellow officer In 1983 an officer pulled his No indication This occurred
(1979-1984) deliberately exposed penis out of his pants; she this was when they were
his penis to Duncan, told him it was inappropriate; reported. going to have a
making the comment it made him mad; he choir practice,
`isn't this started to tell people she had some people
nice'." sex with him all the time. went for more
beer, she and
the officer were
waiting for other
people to
come. This
does not appear
to have occurred
while
the plaintiff was
working.
5 District Four "Talk by male police Every male officer she No indication This is too
(1979-1984) officers about their worked with would tell her this was indefinite to
sex lives was about how his wife did not reported. constitute
routine." understand him and he slept hostile and abusive
on the couch; setting her up conduct.
for a sexual rendezvous.
Almost all of them did; she
did not recall any names.
She did not even "log it";
did not even take note of it
because it was so common.
This happened in District
Four, early years (`79=84),
because she worked solo in
District One.
6 District Four "Regular insinuations Her TO, who was married No indication No date given.
(1979-1984) and comments but involved with a restaurant this was
about Duncan's sex manager, "made some reported. Only two cormments
life." remark that me and him were
were involved sexually." cited.
She said at roll call that was
interesting "because I don't
ever remember it." That The officer she
took care of the problem. worked with is
the same one
An officer she worked with mentioned in
had a roommate who said, in No. 13 & No.
front of others, that he found 16.
a bra in his bed and assumed
*1134
it was Duncan's. She gave This is duplicative
him a smart remark back of No. 16
that embarrassed him and
they traded barbs for the
next year. After that,
"actually, we got along
pretty well."
7 District Four "Accused of having Does not know who made No IAB This is duplicative
(1979-1984) sex with a sergeant accusation. complaint of No. 18.
on the captain's made.
desk." Occurred "throughout" the
time when she was first in
District Four.
8 District Four "An officer with The officer was married and No indication No date given.
(1979-1984) whom Duncan was called a country music station this was
partnered called a and had his girlfriend reported. This is the same
radio station frequently announced "To Cindy out officer who was
listened to there, your partner just fired in No. 3.
by police officers wants you to know that he
and asked a DJ to thinks you are wonderful,
relay a [sexually and some other crap, and
suggestive] message some sexual thing." "That
to Duncan on the air he thinks you are beautiful"
while they were and "wants to do it with
riding together." you." "She [his girlfriend] is
"...Duncan had laughing."
reason to believe
that other police "... all policemen are listening
officers heard the to the same country
radio music station."
announcement."
She was a "boot" then.
Boots were treated like dirt.
9 District Four "Duncan's commanding The captain asked the sergeant No indication This remark
(1979-1984) manding officer [a if Duncan was giving this was was not made to
captain] asked a him "head" when he recommended reported. her or in her
sergeant who recommended her to be a TO. She presence.
her for a "doesn't know the context
promotion if Duncan ... because [she] only got it
was `giving him second-hand. ..."
head'. [He] asked if
Duncan was giving She asked the sergeant what
all the sergeants if all of the sergeants went
`head' when they and told the captain that
concurred in the they believed she would be a
recommendation. good TO. "So I was of the
Duncan did not get impression that he had gone
the promotion." to talk to [the captain], and
that basically [the captain]
said, Does she give you all
head or what?" She was
never allowed the opportunity to be a TO because the
class came and went.
10 District Four "Capt.was She can only speak for No indication No dates given.
(1979-1984) generally hostile to herself regarding what the this was
females under his captain did that she felt was reported. This is highly
command, made harassment. speculative as
remarks about
to an improper
Duncan's breasts, He made remarks about her motive.
and covered her breasts. He did not like
calls on the street to police women. He "would
check up on her always seem to cover my
when he did not do calls." "This mean[t] that
the same for male sometimes he would get
officers under his there before I did, which is
command." highly unusual." It was a
way of intimidating her, you
always have to have your hat
*1135
on, do everything perfect.
She was not new then, no
longer a recruit. Does not
know whether he covered
recruits' calls.
She surmised that he did not
do this to male officers when
a male officer asked her
whether the captain always
covered her calls.
11 District Four "Officerwho The officer was at her level. No indication No date given
(1979-1984) believed women did He did not believe women this was for the incident
not belong on the belonged on the job. He got reported. or the officer's
job, got on the police on the air and said he would death.
radio and announced refuse to cover me when
on the air that he they sent me to a bar fight
would not cover solo.
Duncan when she
got called to a bar He is dead now.
fight and was working
solo."
12 District Four "A dildo was put in District Four. No indication The male officer
(1979-1984) the mailbox of another this was is the same
other female police A male officer showed reported. man who was
officer, Officer" Duncan the dildo and told fired in No. 2.
her how much fun he was
going to have tormenting
people with it. He apparently
put the dildo in the mailbox
The female officer believed
that the male officer
did it but accused Duncan
because she thought Duncan
was involved and Duncan
was a clerk.
13 District Four "Comments and/or She was accused of having No indication One officer is
(1979-1984) allegations that an affair "with anyone I had this was the same one
Duncan was having as a partner." When asked reported. mentioned in
sexual relationships to give a list, Duncan identified No. 6 & No. 16.
with her [male] , a detective in the
partners,and theft bureau ('89-'91),
in '81 or '82, andin '83.
14 District Four "While on a District Four. No indication This was an
(1979-1984) burglary call in a She named the officer. He this was effective self-help
dark basement, a put his arms around her and reported. help remedy.
fellow patrol officer kissed her on the face. He
put his arms around laughed and said it was no
Duncan and kissed big deal. "And we worked
her." that out." "It was wrong,
and I didn't appreciate it,
and it didn't happen anymore.
He just had to be
told."
15 District Four "Another female officer The woman referred to as a According to Duncan does
(1979-1984) was referred to split tail told Duncan that Duncan's testimony, not remember
as a `split tail' over she "reported it." this was if this was in
the police radio." "reported" by District Four or
She does not remember if the female One.
this was in District Four or officer.
One. There is no information
about
a response.
16 District Four "Duncan's partner's The pages cited do not support No indication No date given.
(1979-1984) roommate (also a this allegation. If the this was
police officer) commented plaintiff was referring to reported. This is duplicative
*1136
that he had pages 238-239, this reference of No. 6.
found a bra in his is duplicative of No. 6 above.
bed and assumed it The same
was hers, implying officer is mentioned
that she was having in No. 6
a sexual relationship & No. 13.
with her partner
___."
17 District Four "A particular lieutenant It was the lieutenant for Not reported. No date given.
(1979-1984) would call females whom she worked.
in after dark The cited testimony
because he did not "You don't report these does not
want policewomen things. Nobody thought support the
on the street at them to be a problem or a allegation that night." crime. It is just what they this is sexual
did." harassment. It
appears to be a
protective
measure.
18 District Four "Was accused of This is duplicative of No. 7. No IAB complaint This is duplicative
(1979-1984) having sex with a made. made. of No. 7.
sergeant on the
captain's desk."
19 District Four "Duncan was forced Duncan called the captain in No indication No date given.
(1979-1984) to ask for a transfer 1 about moving to 1 midperiod this was reported Presumably this
from District 4 to because of harassment other than to was at or near
District 1 in midperiod by the captain in 4. the captain in 1. the time of
period because of transfer. The
the harassment of remedy requested
[the captain in was
District 4]." granted.
20 District One "Throughout her District One. No indication Duncan's testimony
(1984-1988) tenure at District this was is inconsistent;
1, Duncan was "...when I got the next car reported . she
ostracized by fellow up, it caused a lot of resentment said she was
officers and did not with the men in that ostracized and
receive cover from sector. They wouldn't take did not receive
fellow officers." me to coffee, they wouldn't cover, and then
cover my calls." "I basically said she had
worked a solo car ..." friends who
would cover
her
The supervisor put me on
the car instead of taking a
vote to see whom they wanted,
which would have been
another officer, so they ostracized
me. "They didn't
want a woman there."
I got along fine without
them. I was used to working
solo. "That was what I
wanted, because I didn't
want to have a full-time
partner."
"I had a lot of friends who
would cover me and go to
lunch."
"I had to operate in not as
safe a level of police work
simply because I didn't have
backing."
"I never asked for cover."
That entire sector would not
cover her. "Unless I absolutely
*1137
called it out and said I
had to have cover."
21 District One "A detective walked District One. No IAB complaint This was an
(1984-1988) into a closet behind was made. isolated
Duncan, put arms A named detective followed incident.
around her, pushed her into a closet, "put his
her against the arms like that," "put me up
shelves and tried to against he shelves," and
kiss her on the tried to kiss me.
mouth."
22 District One "She was ... more District One. No indication The testimony
(1984-1988) often assigned to be this was does not support
the clerk for her The supervisor "was known reported. the allegation
shift than male not to like women." "On that she
officers." numerous occasions," she was assigned
would be in a car and then more than male
be clerk. "[I]t started to be officers. In
a pattern ...." "[T]lley put some respects,
me on a scout car and I got it is inconsistent
moved off that." with her testimony
in No. 20,
where she says
that the same
supervisor gave
her the next car
up, which
caused her to
be ostracized.
23 Detectives/ "Comments and/or In the theft bureau there No IAB complaint The cited testimony
Crimes allegations that were rumors she was having was made. does not
Against Duncan was having an affair with a named support the
Property sexual relationships detective. allegation
(1988-1991) with two fellow concerning the
detectives,___ and '89'91 time frame. other detective.
____."
24 Detectives/ "While working one Although the plaintiff referemced She did not This is an
Crimes Sunday, a detective pages 275-275, it is report it. isolated
Against grabbed Duncan and assumed she meant pages incident.
Property tried to kiss her on 275-276.
(1988-1991) the mouth."
One Sunday a detective
grabbed her body and kissed
her. She does not know if it
was on her mouth. He is
now retired.
The theft bureau.
25 Detectives/ "2-3 suggestive She was in the theft bureau. No IAB complaint There is no
Crimes notes left on her made. indication that
Against desk by a fellow A named detective left two he repeated this
Property detective." or three notes on her desk conduct after
(1988-1991) saying he would like to go her request to
out with her, "I would like stop.
this, I would like that." She
confronted him about it and
asked him not to do that.
26 Detectives/ "Duncan asked for A sergeant, now retired in No indication There is no
Crimes an assignment in Florida, wanted her to work this was indication that
Against burglaries and was for him. He told Duncan reported. this was an
Property requested for the that the lieutenant said he adverse
(1988-1991) assignment by a sergeant, would not allow Duncan to employment
the lieutenant transfer into burglaries action.
assigned to burglaries because she was a woman.
refused to allow
hrt yo ytsndgrt into
She was in theft; in '91.
the unit because she
was a woman." The lieutenant is dead.
*1138
27 Detective/ "Regular remarks She was in the assault No indication The offensive
Crimes by a lieutenant of a bureau. this was conduct stopped
Against sexually suggestive reported. when she spoke
Persons nature and unwanted The named lieutenant made to him. This
(1991-1995) physical contact remarks such as "You look was effective
by him." so nice today." "What are self-help.
you doing tonight? Do you
want to have a drink?" "He
would get close to you, brush
up against you in the elevators"
She got irritated at
him, said something. That
day or the next day he apologized
and said he had been
out of line and did not know
she was married.
28 Detective/ "Suggestive comments A named captain asked No indication These remarks
Crimes by her commanding Duncan if she could get this was do not appear
Against officer, him a date with Duncan's reported. to be hostile or
Persons that aside from her girlfriend. abusive.
(1991-1995) abilities, Duncan
`brought a lot to the She was under his command
table' and other inappropriate at the assault bureau.
remarks
by the same commanding When she was going to do She did not
officer." the sergeants test the captain report this
said "It is not just your incident.
abilities, as a police officer,
that would make you such a
good sergeant, because you
really do bring a lot to the
table." "And to me that was
full of quite a bit of innuendo."
"I assumed ... it
meant ... my personal physical
appearance." "[H]e was
sitting very close to me, and
he leaned over, and he said
it."
29 Detective/ "Hit on the buttocks She tapped an officer on the IAB Complaint The refusal to
Crimes by an officer so hard top of his left shoulder to ask filed, Duncan cooperate in the
Against that it left a bruise." him to stand and allow her to would not allow investigation
Persons pass. He said "Now, what pictures of the ended it. A
(1991-1995) would you do if I touched alleged bruise to photograph was
you on your backside like be taken, no a routine
that?" And she said that "I independent procedure.
guess similar circumstances, source to support
yeah, you could do the same complaint
thing." Then he slapped her so complaint
on her rear end. She could could not be sustained
not sit; it was very painful. No disciplinary
"It was really kind of red." action
Her girlfriend saw it. taken but commplaint
made part
of the file on the
accused officer.
(Letter to
Duncan dated
12/28/93, City's
Exhibit D.)
The officer did
not engage in
similar conduct
again.
30 Detective/ "Accused of having She was on medical leave No indication This could not
Crimes sex with Dep. Chief from an accident when the this was be considered a
Against ___ on his desk." Deputy Chief was discovered reported. hostile or abusive
Persons in a sex act at headquarters act.
(1991-1995) with a woman. Her girlfriend
*1139
called Duncan and
told her that "People are
saying that it might even
be you by the way they
described her."
31 Detective/ "Was pressured by a This duplicates No. 28. No indication This is partly
Crimes superior officer to this was duplicative of
Against get him a date with The captain "pushed it a reported. No. 28 and
Persons a woman Duncan number of times: Did you could not be
(1991-1995) knew." ever contact your considered abusive
girlfriend?" or hostile.
32 Detective/ "A superior officer The "she owed him" was No indication This is partly
Crimes told her `she owed a favor he wanted from this was duplicative of
Against him' after he supplsedly Duncan, namely, to get reported. No. 28 and No.
Persons did her a him a date with her 31.
(1991-1995) favor." girlfriend.
33 Internal "An officer who A detective said this. She No indication This could not
Affairs came into a unit to was wrapping presents, ties, this was be considered
(1995-1996) see another detective for her husband and her reported. hostile or
remarked to father. abusive.
Duncan as she
wrapped a valentine's
gift for her
husband, "I understand
your valentine's
list is longer
than your Christmas
list."
34 Internal "Allegations by officers "[T]he guys in the info desk No indication This is an
Affairs manning the said they caughet [a superior] this was isolated
(1995-1996) front desk that they touching my breasts, okay? reported. incident.
saw [a superior] That was a new rumor that
touching Duncan's got started. That never
breasts through the occurred." "I don't remember"
cameras on the outside who told me that's what
of the head-quarters was being said.
building."
35 Internal "Chief Michaud Referenced pages (pp. 957-958) No indication There is nothing
Affairs caused her ranking were not provided by this was to indicate
(1995-1996) on the sergeant's the plaintiff. reported. that this was
promotion list to be done with a
lowered." Plaintiff's Exhibit 26 is a discriminatory
letter dated 4/5/96 from intent or a
Michaud to the Civil Service hostile reason.
Commission outlining the It did not affect
events which led up to Duncan's
Duncan's change in ranks promotion to
with another female officer, sergeant.
moving Duncan up to number
27 from 28, stating he
believed the change to move
her up from her original
rank was inappropriate, and
requesting that the Sergeant's
Eligibility Register
be revised and returned to
its original rank order.
36 Internal "Duncan was not She was in internal affairs. No indication The cited deposition
Affairs allowed to use a department She was brand new. The this was testimony
(1995-1996) vehicle other two detectives were reported. does not support
when she was the veterans. the allegation
on-call detective unless that she
she made a formal She was treated "differently was treated
written request than the other two detectives" differently
to do so, whereas "When the detectives because she was
the male detectives who were supposed to a woman. Instead,
were allowed to use be on call with the car, when she testitied
*1140
the car at their own they had the car, they didn't that she
discretion." have to ask to have the car was brand new
between this month and this and the veteran
month ... but ... [when] it detectives
was my time, I had to make received more
a formal letter and request favorable
it." treatment.
37 Internal "Duncan's sergeant The same cited deposition No indication Again, the tone
Affairs monitored her comings testimony is used to support this was and content of
(1995-1996) and goings in No. 36 & No. 37. reported. the testimony
the unit and did not supports the
monitor the male She was brand new in conclusion that
detectives." internal affairs, she was treated
differently because
The supervisor monitored cause she was
her activity and treated her new. She did
differently "than the other not state that
two detectives." For example" she was treated
He let both detectives differently
in IA go away at that time because she was
when we had a lot of hearings a woman. (See
and everything else. I No. 36.)
was brand-new. I had been
up there maybe two weeks.
He let both of the veteran
detectives go...."
38 District Four "Allegations circulated Hines testified that comments Duncan initiated No date given.
(1996-2000) that another about Duncan were an IAB complaints Although unclear,
sergeant was transferred called "Cindygate." That about rumors clear, presumably
from District she was having an affair with circulating this
4 to make room for the chief and that's the reason and an investigation occurred when
Duncan implying why she was transferred was conducted. Duncan transferred
that because she to District 4 out of IAB. No violation to
was having an affair "...it was a forced transfer was found. District 4.
with [a chief] she with Sergeant Pinder to (See No. 55.)
got to choose where IAB, because Sergeant
she wanted to go." Duncan came out on the
street when she made
sergeant."
39 District Four "After Duncan was According to Hines, before See No. 55 Hines' testimony
(1996-2000) assigned to District Duncan was assigned out at discussing related to
4 and before she District 4, there were comments Duncan's IAB before Duncan
started her assignment, about her relationship complaint and was assigned
allegations with Leary, Michaud, and its investigation. out at District
circulated that she Sanchez. As to Sanchez, 4.
was having affairs there were comments that
with command officers Duncan received special
and would be treatment and promotions The cited deposition
able to work any and transfers that other testimony
detail she chose." people had not received. does not identify
who "he" is.
Duncan testified: "He
thought that Andrews should
stay on the morning shift,
and he would move me to
day shift" so that he could
monitor the situation because
he worked days and
could make sure her environment
was better. She asked
him not to because "it will
just be more special
treatment."
He said that, before she See JAB complaint The rumors
came out, Lt. Leone asked against were not
him not to bring Duncan Leone referenced discriminatory
"here" because "She's a in No. 42. because they
pipeline to the administration affected male
because she's friends supervisors
*1141
with them. She will tell unfavorably as
them everything she don't well as
like that goes on here, and Duncan.
I'll bet you within three
months, she'll be voting any
days she wants and working
days."
40 District Four "Duncan was the Sanchez testified: Exhibits See No. 55 These criticisms
(1996-2000) subject of two anonymous 37 & 38 were two anonymous discussing were of the
letters circulated letters that floated around Duncan's IAB management of
throughout the more than department wide. complaint and the DPD and
department, which [He has seen several other its investigation. could not reasonably
alleged, among anonymous letters concerning be considered
other things, that Duncan. There was a sidered hostile
Duncan received letter that referred to or abusive of
choice assignments "Cindygate" and Duncan.
because of her "concubine," and alleged a
relationship with sexual relationship between
Sanchez." Duncan and Leary. This
was sometime between 1995-1998.
Michaud was concerned
with Duncan's personal
safety.]
Exhibits 6 & 7 are the alleged
anonymous letters:
Exhibit 6 contains the date
May 23,1997, so the letter
must have been written after
that date. Duncan is a small
part of the letter that is
addressed to "Dear Mr.
Mayor." Although Duncan
is one of many names in the
letter, it is an attack on the
"corrupt police administration"
and not directed at
Duncan.
Exhibit 7 contains a few
dates, the most recent is
March 1999. It also references
Duncan's transfer to
the academy and then to the
photo radar unit. Although
the bulk of the letter addresses
Sanchez's relationship
with Duncan, it is
directed toward Sanchez and
his alleged improper
relationships and abuse of
authority.
41 District Four "Duncan was the There were other letters in See No. 55 The reference
(1996-2000) subject of another addition to Exhibits 37 & 38 discussing to a threat to
anonymous letter, (plaintiffs Exhibits 6 & 7). Duncan's IAB Duncan and
which accused her There was a letter that said complaint and Leary is an
of having an affair they were going to send one its investigation. isolated event.
with Dep. Chief to her house, in hopes that
Leary. The author her husband, a cop, would
threatened to send a get a gun and kill her and
similar letter to Leary. The Chief was
Duncan's home in concerned about it. This
an effort to get was prior to Exhibits 37 &
Duncan's husband 38.
to get a gun and
shoot them both."
42 District Four "Lt. Leone told other "I heard sergeants in the Duncan initiated The statements
(1996-2000) officers he was sergeants' office talk about an IAB complaint specifically referenced
going to follow Sgt. how Leon[e] had bragged against in the
Duncan and the that he was going to follow Lt. Leone. Her 12/11/97 IAB
*1142
Chiefs to see if he us [Sanchez, Leary or issues with him letter include
could catch them in Michaud] and try to catch us were that he rumors about
a compromising coming out of each other's was spreading Duncan,
position." homes. That was when I rumors about "Cindy-gate."
was in District 4." her and Leone's alleged
Michaud, Leary statement that
Rumors about her and and Sanchez, he was going to
Michaud were called his use of the drive by her
Cindygate. Cindygate term, residence and
his saying that that Joe
he was going to Duncan had
drive by her observed Leone
house to catch doing so, and
her with one of rumors of her
the chiefs, and walking out of
his telling Sanchez's house
Sandoval not to following the
let her come to arrest of a sexual
District 4. (Nos. assault suspect.
39, 42, & 43). They are
not evidence of
IAB investigated gender hostility
and found no toward the
corroboration plaintiff.
for statements
contained in
Duncan's complaint.
The
complaint
against Leone
was determined
"Unfounded."
(12/11/97 IAB
letter, City's
Exhibit G.)
Duncan is not
aware of any
further rumors
spread by
43 District Four "Lt. Leone was There is reference made to See IAB complaint Same comment
(1996-2000) seen by Duncan's District 4. against as No. 42.
husband cruising Leone referenced
slowlyu by their in No. 42
home." Joe Duncan testified: enced in No. 42.
He does not know what
Leone looks like. "I saw
somebody that fit his
description drive by my
house" once.
44 District Four "Lt. ___ repeatedly While explaining about Duncan complained The complaint
(1996-2000) use the term `woolies handling internal affairs and IAB resulted in
to describe complaints, "Lt. ___ starts investigated the reasonable
female genitalia during telling me about woolies." lieutenant's remedial
a conversation He repeated it at least 12 February 1997 action.
with Duncan in his times and was talking about actions. He was
office." a woman's genital area. given a written
reprimand and
Duncan's testimony about ordered to attend
the lieutenant is made in the a Remedial
context of Duncan explaining Sexual Harassment
to another lieutenant why Class.
she would not complain (6/4/97 IAB
about a sergeant's actions of letter, City's
walking out on her role call, Exhibit F.) The
talking down to her in front lieutenant was
of people, etc. "I'm going to also transferred.
go and tell [the lieutenant]
about subtle things that this Duncan never
man obviously would never worked with or
understand?" had any interactions
*1143
with this
lieutenant again.
45 District Four "Lt.___ confronted The lieutenant asked Duncan This was part of This cannot be
(1996-2000) Duncan during the to come into his office and IAB investigation considered hostile
pendency of an "... I felt very badly because and disciplinary or offensive
internal affairs investigation cause I actually did like [this action. conduct.
into the lieutenant], and I felt bad (See No. 44.)
`woolies' comments how all this thing went
and accused her of down...." He asked her
stabbing him in the "Why did you do this?" "I
back." liked you." "I thought you
were an excellent sergeant
...." "Why would you
stab me in the back?"
She said, among other
things, "I didn't know it was
going to all end up this way.
Originally, it was because of
Sgt. ___, I said, and it just
turned out this way, and
that's all I can tell you."
46 District Four "Over a two-year Pre-disciplinary meeting IAB investigation Appropriate
(1996-2000) period from 1997 transcript The transcript and the sergeant remedial action
through 1998, Sgt. provides that disciplinary was disciplined was taken.
___ regularly discussed action was recommended with a
Duncan's sex "based upon the following suspension of 60
life and speculated information and this is not days and ordered
about her various intended to be a complete to attend
partners in a public summary of the case file; Remedial Training
restaurant in front For a period of time between on Sexual
of other command January of 1997 and April of Harassment
officers, including 1998, Sergeant __ patronized issues.
sergeants and lieutenants, the Breakfast King (City's Exhibits
and within Restaurant.... Over this H, I & J; plaintiff's
earshot of other period ... he engaged in Exhibit 9.)
restaurant several conversations with
patrons." Mr. __, the night shift Other than a
manager, as well as fellow letter the sergent's
District Four sergeants. lawyers
These discussions focused on wrote to the
Sergeant Cynthia Duncan mayor about
and included a number of Duncan, since
specific sexual references as April 1998, she
well as ... adverse comments is not aware of
on her job capabilities any statements
.... [S]ome of these conversations he made about
were heard by her. The
other restaurant patrons and sergeant was
employees." transferred to
District 2 in
According to the transcript, April 1998.
the sergeant admitted his
conduct was reprehensible,
disgusting, mean-spirited,
and immature.
47 District Four "Sgt. ___ criticized This is part of No. 46 and This was investigated See No. 46.
(1996-2000) her abilities as a references the same and the
command officer to transcript. sergeant was
both fellow sergeants disciplined.
and at least (See No. 46.)
one civilian."
48 District Four "Sgt. ___ was disrespeciful The initial complaint she Duncan testified See Nos. 46 &
(1996-2000) and undermined made about him was more that she complained 47.
Duncan's about him being rude, discourteous about
authority, walked courteous and condescending his rude and discourteous
out of roll calls she as opposed to comments of a behavior
was conducting." sexual nature. for as well as his
comments of a
*1144
The second complaint sexual nature.
against this sergeant was Presumably this
"when all the sexual things was part of the
occurred." His remarks got investigation
worse after he was transferred referenced in
back to the morning No. 46 & No. 47.
shift; his remarks did not
become the focus of the
complaint until the second
complaint.
49 District Four "A lieutenant in AIB The referenced deposition Date unknown.
(1996-2000) initiated a complaint testimony is not included in Even assuming
against Duncan after the plaintiffs exhibits. this allegation is
Duncan asked true, this conduct
that he be removed does not
from the [sergeant's] establish
investigation discrimination
because he against Duncan
had been rude and based on her
disrespectful." sex.
50 District Four "Ostracized by Two named sergeants No indication This is a consequence
(1996-2000) fellow sergeants "wouldn't sit with me or anything this was of the
Who wanted to get thing when ___ came back to reported. conduct of the
along with __ because the morning shift and I was sergeant who
he was the on Detail 4. They wouldn't was appropriately
senior sergeant on sit with me, but then when disciplined.
the detail." he wasn't working on a day (See
off, they would come and sit Nos. 46-48.)
with me."
51 District Four "In June 1999, a During a discussion about Duncan initiated No date given
(1996-2000) subordinate officer, how many points they got in IAB complaint but this occurred
[man], made a crude their ratings, the officer against this officer during a
remark to Duncan commented: "when I They both Rockies game
while both were on [Duncan] said I have gone received written they were
duty, implying everywhere and done everything reprimands. working. This
Duncan slept [but had a 5.2 rating], is an isolated
around." he said, Yes, that is what I
heard. And he started random
laughing." comment.
52 District Four "When Duncan filed Duncan said: "Make no mistake, This was investigated This discipline
(1996-2000) an internal affairs take, I said, if you say one and both was not gender
complaint against more thing and I will fucking received reprimands motivated.
Officer ___, she too file on you" and raised her See No.
was disciplined for index finger. She could not 51.
using a cuss word in believe she might be filed on
response to [his] improper for losing her temper.
comment."
She got a written reprimand
for using profanity and he
got a reprimand for what
they considered to be inap
propriate innuendo.
53 District Four "Magazine article Testimony supports statement. IAB investigated No date given,
(1996-2000) left in Duncan's interoffice statement but the article
teroffice mailbox made by Lt. appears in the
with a cartoon of a Plaintiffs Exhibit 12 is article; Bown, when he June 1998
naked woman in a "9 reasons why men was shown the Glamour magazine.
bathtub and sub-headings envy you." It is contained in article by zinc. It could
headings in the article a Glamour magazine, written Duncan. Bown not reasonably
such as `Orgasms by a man and states said it was not a be considered
That Don't Cause "Men are Jealous of Women." "female thing" hostile and abusive
Flood Damage' and The subheadings cited but a "Cindy to women.
Breasts that by Duncan are just two of Duncan thing."
Work'." them, but they were the ones
Duncan testified that she Lt. Bown reported
found offensive. Other the incident
headlines include "Pasta and he was
Therapy," "Great Bathroom exonerated.
*1145
Escapes," "Makeup Magic,"
"Cheerleading squads," (10/7/98 IAB
"Public displays of expression," letter referencing
and "More life 7/98 incident,
choices." City's Exhibit
L.)
Briefly summarized, the
article is about "[t]he
female habits, pleasures and
treasures that men secretly
covet."
54 District Four "Duncan's work was Duncan had her papersher No testimony Although no
(1996-2000) undermined, paperwork "job historyin a notebook that this was date was given,
was removed and showed it to some sergeants reported. she testified, in
from her desk, her who had not taken the referenced
application for the the test and were curious pages, that she
lieutenant's exam, about the process. "Somebody took the test
which had been left body got in my car and "[m]aybe two
in a patrol car, was threw my job history, which years ago,"
removed from the was the only copy I had, and which would
car and found in threw it into Lakewood." A have been about
Lakewood by a Lakewood man found them. November 1997.
citizen." It is undue
No supporting testimony speculation that
was provided in the cited this action was
pages for her allegation that done by a male
her work was undermined or police officer or
that paperwork was removed that it was gender
from her desk. motivated.
55 District Four "Accusations that The same testimony of Hines In January 1996, No date given
(1996-2000) she was having affairs that was used to support No. Duncan initiated but refers to
with Chief 38 is used to support allegation an IAB complaint the reason for
Michaud, Dep. Chief No. 55. Hines testified about rumours, Duncan's transfer
Sanchez and Dep. that comments about Duncan alleging to District 4
Chief Leary with were referred to as Detective Anne out of IAB.
the situation being "Cindygate," and there were Woods initiated
dubbed `Cindygate'." "different things" about them. IAB invesigated
Duncan's relationship with determined
the chief and handling of a that
sex assault in front of the rumor resulted
chiefs home. from a conversation
between
Woods and
Duncan, and
found the case
"Not Sustained."
(3/28/96 letter,
plaintiff's Exhibit
17; 3/19/96
IAB letter,
City's Exhibit
E.)
Duncan testified: Cindygate Duncan is unaware No date given.
was about her and Michaud, aware of any
Sanchez, and Leary. "I was further rumors Duncan's testimony
told that it was about being circulated establishes
Leon[e] saying that he was thereafter by Woods. the rumors
going to topple this administration are gender
with the information neutral.
he has and he said, And my Leone was investigated. They were directed
information I've entitled (See at "toppling"
Cindygate. And he was implying No. 42.) the
that I was having sex administration
with all three chiefs." "Apparently and not to her
Leon[e] dubbed it based on her
Cindygate." gender.
56 District Four "Chief Michaud Sanchez testified: Cindygate Duncan initiated No date given.
(1996-2000) went to roll call at "was the word that described a complaint
District 6, said he the fact that Chief Michaud's about rumors This is the same
*1146
was there to dispel administration was going to and JAB conducted subject matter
rumors and announced fall because of this Cindygate an investigation as No. 55.
that, `he thing, because of this (See
was not having an sexual liaison." No. 55.) Michaud's conduct
affair with Cindy could not
Duncan'." There were rumors that Leone was also reasonably be
Michaud was involved with investigated. considered anything
Duncan, living outside the (See No. 42.) other
city and getting a divorce all than an effort
going on at the same time. to stop the
"He [Michaud] felt that this rumors.
rumor situation was out of
control, and he wanted to
stop it. He felt that if he
went to some of the roll calls
in District 6 [the largest district]
... that he, maybe,
could nip this and make it go
away."
Michaud told Sanchez that
Michaud was going to try
and dispel "each of these rumors
... the divorce, living
out of the city, Cindygate,
that sort of thing." Michaud
told Sanchez "he discussed
all of these issues with the
officers at roll call," including
telling the officers he
was not having an affair with
Duncan.
Coogan testified: Michaud No date given.
told her he went to a roll call
and announced he was not
having an affair with Duncan.
He indicated Leone
was connected to the term
Cindygate.
57 District Four "On two occasions When Duncan was a sergeant No indication It is highly
(1996-2000) when Duncan was about '98, there were this was speculative that
covering dangerous two examples of when she reported. this was gender
calls, she requested did not get cover. One involved motivated.
cover and failed to a fight between two
get it until dispatch men and a woman. She
assigned a cover called for cover, did not get
car." cover until she called again
and "they ordered somebody
to get there." The other
time was when she went to a
domestic and her cover did
not come for 15 minutes.
58 District Four "Duncan was transferred Heather Coogan "offered me No indication No date given
(1996-2000) to the Police to go to the academy." I did this was but on pages 2-3
Academy against not want to go, it was an reported. of her
her wishes to a non-sergent hour away from my house, Response brief,
sergeant position." winter was coming and I had Duncan states,
a sports car, I only have five without supporting
minutes to District 4. I never reference,
wanted to go there. that she
was transferred
to the Police
She left the academy to go to Academy in
traffic because: she had a August 1999,
non-sergeant position at the assigned to the
academy, the only vacant position photo radar
available was a technician unit in traffic in
spot. "But due to the December 1999,
circumstances, they sent me and went on
out there [academy]." When medical leave in
*1147
the photo radar program June 2000.
came in they had to put a
sergeant in there, "I was the There is no
only sergeant in a non-sergeant evidence to
position," Dep. support
Chief Abrams called me, said Duncan's perception
I did not have to go there, that this
but he would appreciate me was an adverse
taking on the program. "So action.
that is what I did."
She went on medical leave
from traffic. The reason
was because: "there was an
incident when I was working
a Rockies game ...."
APPENDIX A
NOTES
[1] These dates were obtained from pages 2-3 of the plaintiff's response brief. Ms. Duncan testified, however, that she went on medical leave in June 1999 after she complained about an officer while she was in traffic. (Duncan Depo., pp. 840, II. 23 to 842 II. 20.) She testified that she went to traffic in December 1998. (Duncan Depo., p. 50, II. 11-15.) Further, Ms. Duncan's counsel stated during oral argument that Ms. Duncan was transferred from District 4 to the Academy in the summer of 1998.
[2] In addition, there were at least two other IAB investigations of events which were not included in Ms. Duncan's listed events. First, she initiated a complaint against an officer for remarks about a new rumor about her, made while he was off duty installing blinds for a civilian, a retired detective. IAB investigated and concluded any violation was unfounded because it was a private conversation between an off-duty officer and a recently retired officer. (9/29/99 IAB letter, City's Exhibit N.) Second, there was an IAB investigation of a lieutenant for a statement made to the effect that if this was Vietnam, Ms. Duncan would be "fragged" by now. IAB found the allegation against the lieutenant "not sustained." (10/20/98 IAB letter, City's Exhibit M.)