F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 15 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
CYNTHIA DUNCAN,
Plaintiff-Appellant,
v. No. 03-1257
MANAGER, DEPARTMENT OF
SAFETY, CITY AND COUNTY OF
DENVER, and DAVID MICHAUD,
individually,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 99 M 1299)
Leslie C. Hansen, Leslie C. Hansen, P.C., Littleton, Colorado for the Plaintiff-
Appellant.
Janet A. Savage (Cole Finegan, City Attorney, and Sybil R. Kiskin, Assistant City
Attorney, on the briefs), Denver City Attorney’s Office, Denver, Colorado, for the
Defendants-Appellees.
Before TACHA , KELLY , and McCONNELL , Circuit Judges.
McCONNELL , Circuit Judge.
The Plaintiff, Cynthia Duncan, appeals the district court’s award of
summary judgment to the Manager of Safety of the City and County of Denver
(“the City”), and David Michaud, in his former capacity as the Chief of the
Denver Police Department. This case arises from Ms. Duncan’s allegations of
gender-based discrimination during her employment as a police officer with the
Denver Police Department (“DPD”). She raises four issues on appeal.
First, she argues that the district court erred in granting summary judgment
to the City on the basis that her Title VII hostile work environment claim was
time-barred. Title VII requires a plaintiff to file a charge within 300 days of the
allegedly discriminatory employment practice. 42 U.S.C. § 2000e-5(e)(1). Ms.
Duncan filed a charge of sex discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on April 14, 1998. Thus, the filing period for
her claims began on June 18, 1997. The United States Supreme Court’s decision
in National Railroad Passenger Corp. v. Morgan , 536 U.S. 101 (2002), guides
our determination whether Ms. Duncan’s hostile work environment claim is
timely.
Second, she appeals the district court’s failure to address her Title VII
retaliation claim against the City. Third, she contends that the district court’s
award of summary judgment to Mr. Michaud on the grounds of qualified
immunity was erroneous. Finally, she argues that the district court incorrectly
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denied her motion to supplement her complaint with additional retaliation claims.
We take jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.
I. Factual Background
A. Overview.
Ms. Duncan’s career with the Denver police force has spanned a quarter
century of remarkable and historic change. She entered the force at a time when
it was unusual for women to be police officers, and she endured more than her
fair share of abuse, hostility, and discrimination. She persevered without ever
resorting to litigation. In the later years, many more women had become police
officers. Although problems of sex discrimination did not evaporate, they became
less frequent and more subtle, and were more often and more effectively
addressed by the Department. But it was not until the late 1990s that Ms.
Duncan’s patience was exhausted and she took to court.
Ms. Duncan graduated from the Police Academy in 1979 and was assigned
to District Four as a patrol officer. She worked in District Four until 1984, when
she transferred to District One. In 1989, she became a detective and worked in
the Crimes against Property Division of the Theft Bureau. [ Id. ] Ms. Duncan
transferred to the Assault Bureau in 1991 before moving to Internal Affairs in
1995. [ Id. at 535–36] In 1996, she received a promotion to sergeant and returned
to District Four. In August 1998, she was assigned to the Police Academy and in
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December 1998 was transferred to the Photo Radar Unit in Traffic Operations.
Ms. Duncan took medical leave from the DPD in June 1999 and has not returned
to service.
B. District Four, 1979–84.
Ms. Duncan alleges particularly audacious behavior during her initial
assignment to District Four. While she was in training, Ms. Duncan claims that
another officer assaulted her as she was leaving work one night by grabbing her
and pulling on her clothes. She recalls that when she reported this incident to her
training officer and to the Internal Affairs Bureau (IAB), she “was basically told
to shut up.” She also claims that she received anonymous letters from within the
department. The author of the letters threatened to rape and kill her before
cutting up her body and scattering the pieces around the city. Ms. Duncan also
alleges that a fellow officer exposed himself to her and when she registered her
disgust with the officer, he began spreading rumors that he was sleeping with her.
While investigating a burglary in a dark basement, she claims her backup officer
grabbed her and tried to kiss her. Ms. Duncan claims that her patrol partners
would often attempt to grope her by placing their hands palm up on her car seat as
she was about sit down.
In addition to these specific incidents, Ms. Duncan claims that she was
subjected to constant rumors and sexual banter during her assignment to District
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Four. For example, after officers finished their shifts they would drink beer in
the parking lot before going home, an activity jokingly referred to as “choir
practice.” Ms. Duncan claims that she generally avoided choir practice, and
consequently officers would accuse her of having an affair with any male officer
who also happened to miss choir practice. She alleges that male officers
constantly discussed their sex lives and ceaselessly commented on the bodies of
women they saw on the street. According to her testimony, a persistent rumor
circulated that she had sex with her sergeant on the captain’s desk.
Ms. Duncan claims that her captain at District Four harbored particular
animus towards female police officers. She alleges that when her sergeant
recommended her for a promotion the captain asked whether Duncan was “giving
him head.” When other sergeants joined in the recommendation, the captain
asked if they were all receiving sexual favors from Ms. Duncan. She alleges that
her captain subjected her performance to exacting scrutiny by showing up
unannounced while she was on patrol—a behavior she characterizes as “highly
unusual.” She recalls that her captain would make remarks about her breasts.
The acrimonious relationship between Ms. Duncan and her captain prompted her
transfer to District One in 1984.
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C. District One, 1984–89.
Ms. Duncan claims that the discriminatory conduct continued during her
assignment to District One. She alleges that while processing an arrest at police
headquarters in a dark room, a male detective grabbed her and attempted to kiss
her. Ms. Duncan recalls that she tried to make light of the situation because she
feared that if she reported it she would have trouble getting cover from other
officers during dangerous situations. She claims that during her time at District
One male officers ostracized her and refused to partner with her. Consequently,
Ms. Duncan often worked by herself and did not receive cover from fellow
officers except during urgent situations.
D. Crimes Against Property, 1989–91.
In 1989, Ms. Duncan was promoted to detective and received a transfer to
the Crimes Against Property Division of the Theft Bureau. During this period of
her career, Ms. Duncan claims that she was again subjected to rumors about
having sexual relationships with fellow officers. She also alleges that while she
was in a small room doing paperwork, another detective grabbed her and
attempted to kiss her. She did not report the incident and the detective
apologized. Ms. Duncan also reports that a fellow detective would leave
suggestive notes on her desk, although the behavior ceased after she confronted
him. Ms. Duncan claims that she requested a transfer from Crimes against
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Property to Burglaries, but the sergeant in charge of Burglaries refused because
she was a woman.
E. Crimes Against Persons, 1991–95.
In 1991, Ms. Duncan moved to the Crimes Against Persons division of the
Theft Bureau, where she served until 1995. While in this division, Ms. Duncan
alleges that a lieutenant regularly made forward comments and engaged in
unwanted physical contact. After Ms. Duncan pointedly complained about his
behavior, the comments stopped and the lieutenant apologized. Ms. Duncan also
claims that a subordinate officer slapped her on the buttocks so hard that it left a
bruise. She filed a complaint with the Internal Affairs Bureau, but the
investigation did not lead to any penalties because Ms. Duncan would not allow
pictures of the bruise to be taken out of fear that they would be circulated in the
department. In addition, Ms. Duncan claims that she was again the subject of
rumors, including a story that she had sex with a Deputy Chief on his desk.
F. Internal Affairs, 1995–96.
In 1995, Ms. Duncan received a transfer to Internal Affairs. While she was
in Internal Affairs, Ms. Duncan claims that other officers reported that they saw a
superior touching Duncan’s breasts on surveillance video. Ms. Duncan asserts
that these reports were the basis of a false rumor that circulated around the
department. While she was in Internal Affairs, Chief Michaud received an
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anonymous letter detailing charges of impropriety; the author threatened to send
an even more graphic letter to Duncan’s home in an effort to spur Duncan’s
husband to kill her and the Chief. She reported this incident to IAB.
During this time there was also a dispute concerning Ms. Duncan’s
performance evaluations. Ms. Duncan believed that her composite ranking on the
list for promotion to sergeant reflected an error in tallying her performance
evaluations. She requested a correction of her score to reflect the mistakes. The
Civil Service Commission increased her rank on the Sergeant Eligibility Register
from #28 to #27 after Duncan’s commander increased her efficiency rating. Chief
Michaud then objected to the change because too much time had passed between
the original evaluation and the correction. The Civil Service Commission
adopted Chief Michaud’s recommendation and reversed the correction. The
change ended up meaning little because Ms. Duncan would have been promoted
to sergeant at the same time as the officer ranked #27.
G. District Four, 1996–1998.
After receiving her promotion to sergeant, the Department transferred Ms.
Duncan back to District Four in 1996, where she remained until August 1998.
Ms. Duncan’s second assignment to District Four extended into the filing period,
which ran from June 17, 1997 to April 14, 1998. Before her return to District
Four as a sergeant, Ms. Duncan alleges that rumors circulated around the district
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about her having sex with superiors. She heard that Lt. Leone bragged that he
was going to follow Ms. Duncan and some of the superiors that were the subject
of rumors in an effort to catch them in compromising positions. Ms. Duncan’s
husband testified in his deposition that he reported seeing Lt. Leone driving
slowly by their home. Ms. Duncan heard that Lt. Leone continually used the term
“Cindygate” to describe these rumors. She complained to IAB about Lt. Leone’s
role in propagating rumors, and the subsequent investigation determined that the
charge was unfounded. Another lieutenant repeatedly used the term “woolies” to
refer to female genitalia during a work-related conversation with Ms. Duncan in
February 1997. She filed a complaint against him with IAB for using this term,
and the lieutenant received a written reprimand and was ordered to attend a
Remedial Sexual Harassment Class.
Ms. Duncan claims that Sgt. Jeffery Andrews regularly discussed her sex
life in front of other command officers over a two-year period. Ms. Duncan
claims that Sgt. Andrews attempted, on many occasions, to engage her in sexual
banter. He asked her if she engaged in oral sex and speculated that she could
“jump start a Harley without a kickstand,” apparently in reference to oral sex. He
also undermined her authority by second-guessing her and reprimanding her in
front of officers under her command. Similarly, he would openly question her
competence and allegedly walked out of her roll calls. Ms. Duncan claims that
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officers curried favor with this sergeant by ostracizing her. Lt. Bown explained
this behavior by saying that Sgt. Andrews “just hates women.” Aplt.App. Vol. II
719. IAB conducted an investigation of Sgt. Andrews, and on November 6, 1998,
the DPD suspended Sgt. Andrews for 90 days without pay and required him to
take a Remedial Sexual Harassment class. In a September 22, 2000 decision on
appeal, the Civil Service Commission reduced the suspension to 60 days.
Sometime after May 23, 1997, someone circulated an anonymous screed
addressed to the mayor and signed “Concerned Officers,” making a series of
salacious allegations about various officers. Among other things, the letter
alleged that Ms. Duncan had been sleeping with a deputy chief since 1980 and
that she received promotions because of this relationship. The letter also alleged
that Ms. Duncan was sleeping with a second deputy chief. Ms. Duncan argues
that this letter fueled the persistent rumors that she achieved her rank in exchange
for sexual favors.
In April 1998, another officer filed an IAB charge against Sgt. Andrews on
Ms. Duncan’s behalf. Ms. Duncan alleges that fellow officers ostracized her for
filing the complaint. A lieutenant remarked that if she were in Vietnam, she
would be “fragged” by now, meaning that her fellow soldiers would have killed
her. She complains that it was difficult to get cover after she filed the complaint.
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She recounts two incidents where she was called to potentially violent situations
and did not receive prompt cover from fellow officers.
Sometime in the summer of 1998, Ms. Duncan received what she
characterizes as a sexually explicit article in her department mailbox. Her
lieutenant did not consider the magazine article to be sexual harassment and made
no effort to determine the perpetrator. Ms. Duncan also claims that after her work
product was repeatedly taken from her desk, she had to resort to taking her work
home on computer disk. During July 1998, she had a large notebook full of
paperwork for the lieutenant’s exam stolen out of her car. A citizen returned the
notebook, explaining that he found it in the nearby city of Lakewood.
By August 1998, the relationship between Ms. Duncan and her colleagues
was so acrimonious that Chief Michaud transferred Ms. Duncan out of District
Four to a position in the Police Academy out of concern for her safety. In
December 1998, she moved to the photo radar unit of traffic operations. In a
letter circulated during or after March 1999, an anonymous person accused Ms.
Duncan of using sexual relationships with superiors to influence personnel
placement decisions. During June 1999, a subordinate officer, while on duty,
commented that Ms. Duncan slept around the department. Ms. Duncan filed an
IAB complaint, as did the officer, who claimed that she used profanity in
responding to him. Both received written reprimands.
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H. The Lawsuit and the Request to Supplement the Complaint.
Ms. Duncan filed her EEOC claim on April 14, 1998. She filed her initial
complaint in district court on July 8, 1999, asserting claims against the City,
Chief Michaud, and Sgt. Jeffery Andrews. She filed a Motion to Supplement the
Complaint and a Supplemental Complaint on February 7, 2001. The
Supplemental Complaint contained 11 additional paragraphs alleging
improprieties by an assistant city attorney in an attempt to obstruct Ms. Duncan’s
request for medical leave. The district court construed the motion as an attempt
to introduce evidence of attorney conduct rather than a request for new relief.
The court denied the motion, concluding that any probative value of the evidence
of misconduct by attorneys for the City was outweighed by the possibility that the
evidence could prejudice a fact finder. On December 13, 2001, the district court
dismissed Sgt. Andrews from the case pursuant to a settlement agreement. On
May 6, 2003, the district court granted summary judgment to the remaining
parties on all counts.
II. Analysis
A. Summary Judgment on Ms. Duncan’s Hostile Work Environment Claim.
Title VII requires a litigant to file a claim within 300 days of the alleged
discriminatory conduct. 42 U.S.C. § 2000e-5(e)(1). The very precision of this
requirement—not a year, not six months, not the state law statute of limitations
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for comparable causes of action—bespeaks Congress’s concern. Title VII is not
intended to allow employees to dredge up old grievances; they must promptly
report and take action on discriminatory acts when they occur. Unlitigated
bygones are bygones.
As applied to hostile environment claims, however, this requirement has
proven problematic. Such claims do not consist primarily of discrete acts, but
often involve a series of incidents that span a period longer than 300 days. The
Supreme Court addressed this problem in National Railroad Passenger Corp. v.
Morgan , 536 U.S. 101, 117 (2002), holding that as long as “an act” contributing
to a hostile work environment took place no more than 300 days before the
plaintiff filed an EEOC charge, a court may consider the complete history of acts
comprising that hostile work environment. The Court justified this holding, in
part, on the repeated nature of the conduct, which occurs “over a series of days or
perhaps years.” Id. at 115. Even so, however, an employee may not unreasonably
delay the filing of a hostile work environment claim. Morgan explains that when
analyzing a hostile work environment claim spanning longer than 300 days “[a]
court's task is to determine whether the acts about which an employee complains
are part of the same actionable hostile work environment practice, and if so,
whether any act falls within the statutory time period.” Id. at 120. Morgan
emphasizes that there must be a relationship between acts alleged after the
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beginning of the filing period and the acts alleged before the filing period: “if an
act on day 401 had no relation to the acts between days 1-100, or for some other
reason, such as certain intervening action by the employer, was no longer part of
the same hostile environment claim, then the employee cannot recover for the
previous acts, at least not by reference to the day 401 act.” Id. at 118. Morgan
holds that a series of alleged events comprises the same hostile environment
where “the pre- and post-limitations period incidents involve[d] the same type of
employment actions, occurred relatively frequently, and were perpetrated by the
same managers.” Id. at 120 (citation to court below omitted).
The district court granted summary judgment in favor of the defendants,
which we review de novo. Kendrick v. Penske Transportation Servs., Inc. , 220
F.3d 1220, 1225 (10th Cir. 2000). Our first task on de novo review is to
determine if there is a genuine issue whether the acts Ms. Duncan alleges are part
of the same hostile work environment. The acts Ms. Duncan alleges as part of the
hostile work environment span her entire tenure with the DPD. To determine
whether these acts are part of the same hostile work environment, Morgan advises
looking at the type of these acts, the frequency of the acts, and the perpetrator of
the acts. 536 U.S. at 120. Applying this standard, no jury could rationally
conclude that the acts Ms. Duncan alleges are part of the same hostile work
environment. The acts she alleges early in her career involve frequent instances
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of threatening physical and psychological harassment. The acts during the filing
period involve off-color comments and rumor-spreading perpetrated by a
completely different set of actors. Moreover, eighteen years separate the initial
allegations from the filing period acts. To permit litigation now over these
actions, which were taken by different individuals so long ago under different
circumstances, would frustrate the Congressional purpose in passing a tight
deadline for filing Title VII claims. By any reasonable measure, the acts alleged
by Ms. Duncan are not part of the same actionable hostile working environment.
To delimit Ms. Duncan’s claim we must define the scope of the alleged
hostile work environment. We begin by examining the acts in the filing period
and determining what acts outside of the filing period are related by type,
frequency, and perpetrator. The entire range of related acts constitutes the hostile
work environment underlying Ms. Duncan’s claim. We then determine whether
this range of acts creates a genuine issue of material fact whether the DPD is
liable for the alleged hostile work environment. To show a genuine issue, Ms.
Duncan must demonstrate that the acts were sufficient to create a pervasively
discriminatory hostile environment, and she must show that the DPD failed to
meet the standard of adequate employer response articulated in Adler v. Wal-Mart
Stores, Inc. , 144 F.3d 664 (10th Cir. 1998).
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Ms. Duncan alleges three groups of acts that plausibly took place during the
filing period: (1) the harassing statements by Sgt. Andrews; (2) the spreading of
rumors by Lt. Leone; and (3) the anonymous magazine article placed in her box
and the theft of a notebook by an unknown perpetrator. The alleged actions of
Sgt. Andrews and Lt. Leone began after Ms. Duncan returned to District Four in
late 1996 and continued into the filing period. These acts are related by type,
frequency, and perpetrator, thus all these acts, including those before the
beginning of the filing period, are within the scope of Ms. Duncan’s hostile work
environment claim.
The alleged hostile actions that occurred before Ms. Duncan returned to
District Four, however, are not part of the same hostile work environment as
those alleged during the filing period. The acts she alleges immediately prior to
her return are an anonymous letter threatening physical violence and Chief
Michaud’s adjustment of her score on the sergeant’s exam. While these acts may
have a temporal relation to the behavior of Sgt. Andrews and Lt. Leone, they are
of a different character, they took place while Ms. Duncan was on a different
assignment, and they were not perpetrated by the same people. Even if we draw
all inferences in Ms. Duncan’s favor, we do not think a rational jury could
conclude that any of the allegations before her return to District Four are part of
the same hostile work environment as those acts alleged during the filing period.
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Morgan specifically provides that the hostile work environment underlying
a Title VII claim may include acts taking place after the plaintiff files an EEOC
charge if those acts contribute to the same hostile work environment that existed
during the filing period. Morgan , 536 U.S. at 117; see also Martinez v. Potter,
347 F.3d 1208, 1211 (10th Cir. 2003) (distinguishing discrete acts that occur after
the EEOC charge is filed, which require separate exhaustion of administrative
remedies, from post-filing acts that contribute to a hostile environment).
Accordingly, we analyze the following conduct alleged by Ms. Duncan to
determine whether the district court’s award of summary judgment to the DPD
was proper: (1) the actions of Sgt. Andrews; (2) the use of the term “woolies” by
a superior; (3) allegations of rumors about her relationships with superiors; and
(4) her receipt of the magazine article.
1. The Actions of Sgt. Andrews.
Ms. Duncan’s most serious allegations involve the conduct of Sgt.
Andrews. This behavior began after Ms. Duncan’s return to District Four and
extended into the filing period; thus these acts are timely pursuant to Morgan .
Ms. Duncan presents evidence that Sgt. Andrews (1) openly discussed Ms.
Duncan’s sex life in a public restaurant in the presence of command officers, (2)
speculated that she could “jump start a Harley” with her mouth, and (3)
undermined her authority by walking out of roll calls and questioning her
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competence. Ms. Duncan claims that Lt. Bown explained this conduct by saying
that Sgt. Andrews “just hates women.” She also makes a more general allegation
that officers ostracized her in an attempt to win favor from Sgt. Andrews. These
are substantial claims that are sufficient to demonstrate a genuine issue whether a
hostile work environment existed. However, in order to maintain a suit against
the City, Ms. Duncan must demonstrate the City’s failure to adequately respond to
her allegations against Sgt. Andrews.
The City asserts that it took prompt and effective action in response to Sgt.
Andrews’s conduct. An employer is absolved of liability for acts of harassment
by its employees if it undertakes remedial and preventative action “reasonably
calculated to end the harassment.” Adler , 144 F.3d at 676 (quoting Ellison v.
Brady , 924 F.2d 872, 882 (9th Cir. 1991)). If the employer’s response ends the
harassment by the employee in question, we presume that the remedial action was
sufficient. Id. Where the response is not effective, we examine the timing of the
employee’s complaint, the speed of the employer’s response, and the gravity of
the punishment relative to the alleged harassment. Id. Because the parties
provide little discussion of the impact of the Department’s disciplinary action
against Sgt. Andrews, we focus on the speed and gravity of his punishment.
For reasons that she does not explain, Ms. Duncan did not file an IAB
complaint against Sgt. Andrews. Instead, Lt. Gehm filed a complaint against Sgt.
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Andrews on her behalf in April 1998. IAB began an investigation into the
allegations and, in a letter dated August 25, 1998, concluded that Sgt. Andrews
had sexually harassed Ms. Duncan. On October 12, 1998, IAB sent a letter to Sgt.
Andrews notifying him that the DPD was contemplating a disciplinary suspension.
On November 6, 1998, the DPD ordered Sgt. Andrews suspended for 90 days
without pay for his violation of departmental policy. He appealed the suspension,
and in an administrative decision issued on September 22, 2000, the Civil Service
Commission reduced the suspension to 60 days.
The response of the DPD was both prompt and effective. Ms. Duncan
argues that the DPD did not determine a punishment for Sgt. Andrews until two
years after he began harassing her. However, the Adler standard looks to the
timing of the employee’s complaint. In Ms. Duncan’s case, Lt. Gehm entered the
complaint on her behalf in April 1998. The DPD began a prompt investigation
that resulted in a substantial penalty for Sgt. Andrews. Most telling, perhaps, is
Ms. Duncan’s deposition testimony concerning the discipline of Sgt. Andrews:
Q . . . . It was when the sexual content of the comments became
known that the City initiated, through Lt. Gehm, the IAB
complaint against Andrews that resulted in—ultimately, would
turn into a 60-day suspension; is that right?
A Yes.
Q And in that instance they acted appropriately, didn’t they?
A In that instance.
Aplt.App. Vol. II 851.
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Based on this record, and in light of Ms. Duncan’s acknowledgment that
the City responded appropriately to the complaint, we agree with the district court
that there is no genuine issue whether the City is liable for the actions of Sgt.
Andrews.
2. The Offensive Utterances by a Lieutenant.
Ms. Duncan points to a superior’s use of the term “woolies” to refer to
female genitalia in February 1997 as evidence of her hostile environment. While
this conduct took place before the beginning of the filing period, it occurred
during the alleged hostile work environment created by Sgt. Andrews, so we will
consider this allegation timely. It is not enough, however, to allege a timely act;
to maintain a claim against the City, the plaintiff must demonstrate a genuine
issue that the City was negligent in responding to these utterances. In this
instance, Ms. Duncan filed an IAB complaint, which resulted in a written
reprimand and a requirement that the offending officer attend a Remedial Sexual
Harassment class. This action by the City satisfies the Adler standard for
responding to harassment because the punishment effectively ended this
Lieutenant’s harassing behavior. See Adler , 144 F.3d at 676. Accordingly, Ms.
Duncan may not rely on this incident to demonstrate a genuine issue that the City
failed to respond to alleged harassment.
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3. Rumors and Anonymous Letters.
Ms. Duncan also alleges that the City’s unwillingness to stem rumors that
she slept with superiors to advance her career contributed to a hostile work
environment. Ms. Duncan points to three courses of conduct during her time at
District Four to support her rumor claims: (1) the distribution of two anonymous
letters; (2) the actions of Lt. Leone; and (3) the comments of a subordinate
officer.
Neither of the letters creates genuine issue of fact whether the DPD should
be liable for failing to respond to a hostile work environment. The first letter,
distributed sometime after May 23, 1997, is an outlandish jeremiad that speculates
about a number of far-fetched conspiracies involving high-ranking members of
the DPD. Perhaps because the letter was not a credible source of information,
and because she was not the primary focus of the letter, Ms. Duncan did not file
an IAB complaint. We doubt whether the City has an obligation to investigate
this act at all because it is very difficult for an employer to identify and punish
the perpetrators of anonymous acts. See Alfano v. Costello , 294 F.3d 365, 380 (2d
Cir. 2002) (rejecting a hostile work environment claim because, among other
reasons, the acts with sexual overtones were difficult to remedy because they
were largely anonymous).
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Even if there were a burden on the City to attempt to identify the author,
the letter does not establish discrimination against Ms. Duncan because of her
gender. The letter makes a series of salacious allegations about male and female
officers in the DPD, stating, for example, that one male officer likes drag queens
and another beats his wife. While the letter is spiteful and inflammatory, one
would not say that the letter discriminates against these male police officers on
the basis of their gender. Similarly, the allegations that Ms. Duncan had
relationships with male officers does not single her out for disparate treatment
because of her gender. The letter does not establish a genuine issue whether Ms.
Duncan endured a discriminatory hostile work environment for which the City
should be liable.
An anonymous author distributed a second letter sometime during or after
March 1999 (Ms. Duncan does not provide an exact date). While this act took
place after Ms. Duncan filed her EEOC charge, the letter has a clear connection to
the other acts, such as the distribution of the first anonymous letter, and so we
consider this act as part of her timely hostile work environment allegations. See
Morgan , 536 U.S. at 117. However, the letter, like the other acts she alleges,
simply does not establish a genuine issue of fact that the City tolerated an
environment hostile to Ms. Duncan’s gender. The letter, in terms that are more
measured than the first screed, alleges that a sexual relationship between Ms.
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Duncan and Chief Michaud allowed her to influence personnel decisions.
Sometime in the summer of 1998, Chief Michaud announced at a roll call that he
was not having an affair with Ms. Duncan. A public discrediting of the substance
of the letter by the leader of the DPD demonstrates that the City took prompt
action to combat the influence of these letters. Even without this response, we
doubt whether this letter could support a claim for discriminatory hostile work
environment. The letter critiques both Ms. Duncan and Chief Michaud for the
alleged affair rather than singling out Ms. Duncan on the basis of her gender. See
Pasqua v. Metro. Life Ins. Co. , 101 F.3d 514, 517 (7th Cir.1996) (rejecting
rumors as evidence of a hostile work environment claim because the defendant
failed to show that the employees who spread rumors did so because of the
plaintiff’s gender). Accordingly, we conclude that there is no genuine issue
whether this letter furthers Ms. Duncan’s attempt to demonstrate a hostile work
environment.
Ms. Duncan also alleges that while she was at District Four, Lt. Leone
propagated rumors about her relationships with superiors. We again emphasize
that to raise a genuine issue of fact regarding the City’s liability for the actions by
Lt. Leone, Ms. Duncan must show that the City failed to meet the Adler standard
for responding to a hostile work environment. While Ms. Duncan does not
specifically argue that the City failed to react adequately to the allegations about
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Lt. Leone, a review of the City’s response to her IAB complaint demonstrates that
the City acted in a reasonable manner.
The IAB report reflects interviews with at least eight officers, including
Chief Michaud. None of these officers corroborated Ms. Duncan’s allegations
that Lt. Leone was spreading rumors about her. Accordingly, the IAB report
concluded that the charges were unfounded. An employer must respond to a
hostile work environment when the employer actually knows, or “in the exercise
of reasonable care should have known,” of the alleged harassment. Adler , 144
F.3d at 673. Here, the City conducted a thorough investigation into Ms. Duncan’s
allegations. Even if Ms. Duncan’s allegations were true, we cannot say the City
failed to exercise due diligence in responding to her IAB complaint. Ms. Duncan
has not demonstrated a genuine issue whether the City should be liable for the
alleged actions of Lt. Leone.
Ms. Duncan also points to inappropriate remarks, based on alleged rumors
made by a subordinate officer in June 1999. There is a real question whether we
may properly consider this act as part of the same hostile environment that was
present during the filing period. By June 1999, Ms. Duncan was no longer in
District Four, and more than a year had passed since she filed her EEOC charge.
Furthermore, the perpetrator was not associated with the individuals responsible
for the environment in District Four. Nevertheless, those difficulties need not
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detain us. Granting the generous assumption that this act was part of the same
hostile work environment, Ms. Duncan, yet again, fails to show a genuine issue
whether the City failed to adequately respond. Ms. Duncan filed an IAB
complaint, alleging that the subordinate officer made unsuitable comments. The
subsequent investigation found that the officer had acted inappropriately and that
Ms. Duncan had violated departmental policy by swearing at the officer in
response to his comments. Both the officer and Ms. Duncan received written
reprimands, and Ms. Duncan alleges no further action by the officer. There is no
requirement that the City muzzle its employees before they make an offensive
statement; rather, the burden placed on the City is to penalize harassing actions by
its employees in a prompt and effective manner. The City met that burden here.
4. The Anonymous Magazine Article and the Theft of the Notebook.
Ms. Duncan alleges that someone placed a sexually explicit magazine
article in her mailbox during the filing period. Ms. Duncan cannot demonstrate
that gender bias motivated this act. Given Ms. Duncan’s lurid description of the
article, one might guess that it was in a magazine sold under the counter to men
with minds in the gutter. In fact, the article is a mildly tawdry piece chronicling
nine reasons why men should be jealous of women. The article appeared in
Glamour , a magazine marketed to women and sold in supermarkets among
tabloids and breath mints. Ms. Duncan does not know who placed the article in
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her mailbox, and the record does not indicate whether it was given only to Ms.
Duncan or circulated among a number of employees. While giving the article to
Ms. Duncan might have been boorish, Title VII provides no remedy for bad taste.
See, e.g. , Sprague v. Thorn Americas, Inc. , 129 F.3d 1355, 1366 (10th Cir. 1997)
(holding that unpleasant and offensive conduct does not necessarily create a
hostile work environment). Furthermore, Ms. Duncan registered a complaint
about this behavior, but her supervisor reasonably concluded that it was
insufficient to demonstrate sexual harassment. There is no genuine issue of fact
whether the magazine article contributed to a hostile working environment.
Ms. Duncan alleges another anonymous act that shows no indication of
being motivated by gender bias—the theft of a job notebook, which was later
returned by a man who found it in Lakewood, a Denver suburb. This issue does
not warrant protracted discussion because there is no evidence that this act was
motivated by hostility to Ms. Duncan’s gender.
Because none of the timely acts Ms. Duncan alleges, viewed individually or
as a whole, create a genuine issue whether the DPD should be liable for a hostile
work environment, summary judgment was properly granted. No matter how
severe the discriminatory atmosphere of the DPD over the course of her career,
Ms. Duncan cannot now bring suit without presenting evidence of discriminatory
acts within the filing period, or arising as part of the same course of
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discriminatory conduct as that within the filing period, for which the City should
be liable.
B. Ms. Duncan’s Retaliation Claim.
In her EEOC charge filed on April 14, 1998, Ms. Duncan checked the box
alleging that she was subject to retaliation. She alleges a series of acts before this
date that were supposedly in retaliation for her use of the IAB complaint process.
These acts include the failure to receive backup, an angry outburst by a lieutenant
during an IAB investigation, and her general ostracization by other officers. In
order to succeed on a claim of retaliation a plaintiff must show: (1) she engaged
in protected activity; (2) she suffered an adverse employment action; and (3) there
was a causal connection between the protected activity and the adverse action.
O’Neal v. Ferguson Constr. Co. , 237 F.3d 1248, 1252 (10th Cir. 2001). The
second prong of this test poses problems for Ms. Duncan. An adverse
employment action “must be materially adverse to the employee's job status. . . .
The adverse action must amount to a significant change in employment status,
such as firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” Meiners
v. University of Kansas , 359 F.3d 1222, 1230 (10th Cir. 2004) (internal quotations
and citations omitted). None of the actions alleged by Ms. Duncan before April
14, 1998 materially affected her employment status. These acts may have made
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her work environment unpleasant, but they are insufficient to support a retaliation
claim.
Ms. Duncan does allege one act that is severe enough to be an adverse
action. She alleges that in August 1998, she was transferred to the police
academy in retaliation for filing her original EEOC charge. Ms. Duncan did not
file an additional EEOC charge alleging the retaliatory act however, and this
failure to exhaust her administrative remedies is fatal to her claim. A claim of
retaliation is a distinct allegation of an unlawful employment practice. A Title
VII plaintiff must “exhaust administrative remedies for each individual
discriminatory or retaliatory act.” Martinez v. Potter , 347 F.3d 1208, 1211 (10th
Cir. 2003). Because Ms. Duncan did not file a separate EEOC charge detailing
the one plausibly adverse action by the DPD, her retaliation claim was correctly
dismissed.
C. Summary Judgment in Favor of Chief Michaud.
Ms. Duncan also appeals the grant of summary judgment to Chief Michaud
on her claim that he is personally liable for his role in her sexual harassment
pursuant to 42 U.S.C. § 1983. Chief Michaud’s motion for summary judgment
argued that the two-year statute of limitations barred Ms. Duncan’s claim against
him and alternatively that qualified immunity protected him from liability. On
appeal, Ms. Duncan argues that Chief Michaud’s decision to transfer her out of
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District Four, which occurred within the two-year window, is sufficient to
establish that her § 1983 claim is timely. This is the only action taken by Chief
Michaud that Ms. Duncan alleges took place within the two-year time period. We
determined that Ms. Duncan’s retaliation charge was properly dismissed because
she failed to exhaust her administrative remedies. Accordingly, she cannot rely
on this act to establish a timely § 1983 claim. See Hill v. Ibarra , 954 F.2d 1516,
1522 (10th Cir. 1992) (“[A] § 1983 claim premised upon rights created [by Title
VII] cannot survive the failure to establish a violation of the latter.”)
Accordingly, summary judgment to Chief Michaud was proper.
D. The Motion to Supplement Ms. Duncan’s Complaint.
Ms. Duncan appeals the district court’s order denying her motion to
supplement her complaint. Because Ms. Duncan sought to amend her complaint
more than twenty days after effecting service of her initial complaint, she needed
leave of the court to supplement her complaint. Fed. R. Civ. P. 15(a). The
district court denied the motion to supplement because the “central focus” of Ms.
Duncan’s additional allegations involved the conduct of the City’s counsel during
the course of litigation.
We review a denial of a motion to supplement a complaint for abuse of
discretion. Frank v. U.S. West, Inc. , 3 F.3d 1357, 1365 (10th Cir. 1993). Rule 15
states that leave to amend “shall be freely given when justice so requires.” Fed.
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R. Civ. P. 15(a). We generally refuse leave to amend only on “a showing of
undue delay, undue prejudice to the opposing party, bad faith or dilatory motive,
failure to cure deficiencies by amendments previously allowed, or futility of
amendment.” Frank , 3 F.3d at 1365. In the Tenth Circuit, untimeliness alone is
an adequate reason to refuse leave to amend. Id.
The district court construed the supplemental complaint as an attempt to
introduce new evidence because Ms. Duncan did not add any new claims for
relief. The district court then determined that the probative value of the evidence
was “substantially outweighed” by the possibility of unfair prejudice and
confusion, and denied the motion pursuant to Federal Rule of Evidence 403. Id.
Ms. Duncan does not address the argument that the allegations in the
supplemental complaint would not be admissible. Instead, she argues that the
district court’s decision violated the requirement that a court grant leave to amend
“when justice so requires.” Fed. R. Civ. P. 15(a). Ms. Duncan points us to no
authority suggesting that Rule 15 requires the court to accept a supplemental
complaint based on evidence that would not be admissible in court. Denying
leave to enter the supplemental complaint was well within the discretion of the
district court, and we will not disturb this decision.
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III. Conclusion.
The district court correctly concluded that Ms. Duncan’s hostile work
environment claim was not timely. Though the court did not address Ms.
Duncan’s discrete retaliation claim, Ms. Duncan’s failure to exhaust her
administrative remedies renders this claim untimely as well. Ms. Duncan’s
inability to survive summary judgment on her Title VII claims necessarily means
that her § 1983 claims against Chief Michaud cannot succeed. Accordingly, the
district court’s grant of summary judgment to Chief Michaud was proper. The
district court acted within its discretion in denying Ms. Duncan’s motion to
supplement her complaint. We AFFIRM the judgment of the district court.
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Duncan v. Manager, Department of Safety
Court: Court of Appeals for the Tenth Circuit
Date filed: 2005-02-15
Citations: 397 F.3d 1300
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