Opinion
Case No. 2:01-CV-622TC
February 11, 2003
ORDER
This case involves allegations of unlawful racial and national origin discrimination and retaliation that occurred in the Salt Lake County's Abstractor Department. Manjushree Mohanty, who "is from India," filed this action against Nancy Workman, who was the Salt Lake County Recorder, and Salt Lake County (the "Defendants") on August 15, 2001, alleging retaliation under Title VII of the Civil Rights Act of 1964 see 42 U.S.C. § 2000e-3 (2002), and violations of 42 U.S.C. § 1981 and 1983. The matter is before the court on the Defendants' motion for summary judgment. The following issues are presented in this motion: (1) whether Ms. Mohanty has satisfied her burden pursuant to the McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973), burden shifting scheme that applies to Ms. Mohanty's Title VII retaliation claims; and whether Ms. Mohanty has put forth evidence that (2) Salt Lake County maintained a custom of discriminatory employment practices or (3) granted sufficient authority to either Ms. Workman or Sharlene Butterfield, Ms. Mohanty' s immediate supervisor, to make them "final policymakers" so as to give rise to section 1981 and section 1983 liability for Salt Lake County. For the reasons set forth below, the Defendants' motion for summary judgment is GRANTED IN PART AND DENIED IN PART.
The Complaint states that Ms. Mohanty is "non-Caucasian." (Complaint ¶ 9.) The record indicates that Ms. Mohanty "is from India." ( See EEO Report, Def's Supp. Mem., Ex. 6, at 2; General Intake Questionnaire, Def.'s Supp. Mem., Ex 13, at 1.) Although not entirely clear from the pleadings, it appears that Ms. Mohanty is alleging harassment and retaliation based on race and national origin. ( See Complaint ¶¶ 19, 20.) The court considers Ms. Mohanty's 42 U.S.C. § 1981 claim to allege racial discrimination. ( See Complaint ¶¶ 19-23.) "Section 1981 does not protect individuals from discrimination based on national origin." Aramburu v. Boeing Co., 112 F.3d 1398, 1411 n. 10 (10th Cir. 1997).
BACKGROUND
Ms. Mohanty worked for Salt Lake County as an Abstract Technician from 1985 until July 14, 2000, when she went on Family Medical Leave. During Ms. Mohanty's time at the Salt Lake County Abstractor Department, Ms. Butterfield, who was Ms. Mohanty's immediate supervisor and a newly promoted Administrator in the Recorder's office, treated Ms. Mohanty poorly. Ms. Mohanty complained about Ms. Butterfield's behavior to various employees of Salt Lake County including Marlene Peterson, Dena Noland, Ms. Workman, and Maxine Babalis.
Dena Noland was the Deputy Recorder for Salt Lake County.
Maxine Babalis was an Abstract Technician.
In August of 1999, Ms. Mohanty learned that Ms. Butterfield had made negative ethnic remarks about her and another employee. After learning of these comments, Ms. Mohanty complained to Ms. Workman. Debra Smith, Salt Lake County's EEO Manager, investigated the allegations. She recorded the results of her investigation in a document, the "Administrative Report of Allegations of Ethnic Origin Discrimination in the Salt Lake County Recorder's Office" (the "EEO Report").
Upon Receiving the EEO Manager's report, the Recorder's Office took several actions, including the following: (1) the Recording Office informed Ms. Mohanty in writing that an investigation was completed and administrative action was taken; (2) the Recorder's Office informed Ms. Mohanty that regular review would be made to ensure that she did not experience retaliation or further discrimination; and (3) Ms. Mohanty agreed to supervision by Ms. Babalis, the division's lead worker. Ms. Butterfield continued to administer the entire work unit but directed issues related to Ms. Mohanty to Ms. Babalis.
Ms. Noland conducted these reviews several times a month until Ms. Mohanty resigned her employment.
Ms. Mohanty alleges that several acts of retaliation occurred after she complained of Ms. Butterfield's behavior. On October 1, 1999, the Recorder's Office removed flexible scheduling ("flex time") for all employees. Despite the fact that all employees lost the flex time option, Ms. Mohanty alleges that "the removal of flex time was motivated by retaliation for Ms. Mohanty's complaint of discriminatory treatment." (Pl.'s Opp'n Mem. at 5, ¶ 10.) Ms. Mohanty claimed in her deposition that Ms. Butterfield had threatened to take away Ms. Mohanty's flextime. Shortly thereafter, Ms. Mohanty contends, flextime was removed.
In her Opposition Memorandum, Ms. Mohanty states that the "change in flex time had been threatened by Sharlene Butterfield on June 10, 1999." (Pl.'s Opp'n Mem. at 12, ¶ 2.) In Ms. Mohanty's deposition, however, she states that flextime was removed "days" after Ms. Butterfield threatened to take flex time away from Ms. Mohanty due to Ms. Mohanty's complaints. ( See Mohanty Dep., Pl.'s Opp'n Mem., Ex. A, at 32-33.)
Ms. Mohanty also alleges that another act of retaliation occurred in March of 2000 when she was denied a pay increase that had been unconditionally promised to her on January 6, 2000. The Defendants present quite another view of the promised pay raise. According to Defendants, the pay increase was a settlement offer: "Ms. Noland made a settlement offer on January 6, 2000: a 5% increase in pay now and a promotion with an additional 5% pay raise, to a supervisor when a position opened, which was conditioned upon settlement of her complaint." (Def.'s Supp. Mem. at 8, ¶ 14.) The Defendants claim that Ms. Mohanty rejected this settlement offer.
Finally, Ms. Mohanty points to the following as retaliation by Defendants: (1) she was denied the right to work through her lunch hour on December 3, 1999; (2) she was not "first in line to learn GIS; (3) she was falsely accused of making nineteen errors at work; and (4) Ms. Butterfield treated her rudely.
On September 7, 2000, Ms. Mohanty filed a charge of retaliation with the EEOC and the Utah Anti-discrimination Division. She requested and received a right to sue letter.
ANALYSIS
I. Legal Standard
Under Federal Rule of Civil Procedure 56, a court may enter summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). The party moving for summary judgment bears the initial burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 323; Adler, 144 F.3d at 670-71. A movant "may make its prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Adler, 144 F.3d at 671. In applying this standard, the court views the factual record and must construe all facts and reasonable inferences therefrom in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Aramburu v. Boeing Co., 112 F.3d 1398, 1402 (10th Cir. 1997).
Once the moving party has carried its initial burden, Rule 56(e) requires the nonmovant to "go beyond the pleadings and `set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671 (quoting Fed.R.Civ.P. 56(e)). The specific and pertinent facts put forth by the nonmovant "must be identified by reference to an affidavit, a deposition transcript or a specific exhibit incorporated therein." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992). Mere allegations and references to the pleadings will not suffice. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
II. Can Salt Lake County be Held Liable Under 42 U.S.C. § 1981 and 1983?
In her Second Cause of Action, Ms. Mohanty alleges, among other things, a policy and practice of discrimination against non-whites by Ms. Workman, as a supervising employee, and Salt Lake County, in violation of 42 U.S.C. § 1981. In her Third Cause of Action, Ms. Mohanty alleges that Ms. Workman and Salt Lake County allowed racial discrimination against Ms. Mohanty to take place and as a result deprived her of her Fourteenth Amendment right to equal protection of the law, in violation of 42 U.S.C. § 1983. Because she has neither established that Ms. Workman and Ms. Butterfield were final policymakers nor that they acted pursuant to a widespread custom of discriminatory practices, the Defendants are entitled to summary judgment on Ms. Mohanty's section 1981 and section 1983 claims.
Section 1981 provides that all persons "shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." 42 U.S.C. § 1981(a). The term "make and enforce contracts" includes "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b).
The court assumes, based on the pleadings, that Ms. Mohanty is suing Ms. Workman in her official capacity. "In an official capacity suit, the governmental entity is the real party in interest." Jordan v. Doe, 15 Fed. Appx. 564, available at 2001 WL 127752, at **1 (10th Cir. 2001) (unpublished decision) ( citing Hafer v. Melo, 502 U.S. 21, 25 (1991)). An "official capacity suit is, in all respects other than name, to be treated as a suit against the entity." Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir. 1993) ( quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)). The analysis concerning Ms. Mohanty's claims against Salt Lake County apply to her claims against Ms. Workman.
Also, because qualified immunity is available only to defendants sued in their individual capacities, neither party has raised the issue of qualified immunity. See Langley v. Adams County, Colorado, 987 F.2d 1473, 1477 (10th Cir. 1993).
A municipality cannot be held liable under 42 U.S.C. § 1983 "unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Municipal liability under section 1981 follows the same analysis established under Monell for section 1983 liability. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735-36 (1989); see also Randle v. City of Aurora, 69 F.3d 441, 446 n. 6 (10th Cir. 1995). Municipalities therefore cannot incur vicarious liability under section 1983 or section 1981. Monell, 436 U.S. at 691.
Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983.
Under section 1983 and section 1981, a municipality can be liable "for the deprivation of rights caused by a municipality's own policy or firmly entrenched custom." Sekerak v. City and County of Denver, 1 F. Supp.2d 1191, 1197 (D. Colo. 1998). Courts have found such customs or policies to exist if: (1) an express policy causes a constitutional deprivation; (2) the plaintiff alleges that a person with final policymaking authority caused the constitutional injury; or (3) "there is a widespread practice that even though not expressly authorized is nonetheless so permanent and well settled as to constitute a custom or usage with the force of law." Id. see also Randle, 69 F.3d at 446-47.
Ms. Mohanty does not claim that her alleged harassment was undertaken as part of a formal policy. In fact, evidence shows that Salt Lake County had a written policy expressly forbidding such conduct. ( See Salt Lake County Policy § 5740, Def.'s Supp. Mem., Ex. 3, at 12.) Ms. Mohanty instead claims that Salt Lake County is liable for Ms. Workman and Ms. Butterfield's actions because (1) Ms. Workman and Ms. Butterfield's alleged retaliatory and discriminatory conduct were the actions of County officials with final policymaking authority and (2) they acted pursuant to a custom of discriminatory employment practices.
A. Final Policy Makers
The Supreme Court has explained that "if an official, who possess final policymaking authority in a certain area, makes a decision—even if it is specific to a particular situation—that decision constitutes municipal policy for § 1983 purposes." Randle, 69 F.3d at 447 ( discussing Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)). The Tenth Circuit has identified the following three elements to help determine who is a "final policymaker":
(1) whether the official is meaningfully constrained "by policies not of that official's own making;" (2) whether the official's decisions are final— i.e., are they subject to any meaningful review; and (3) whether the policy decision purportedly made by the official is within the realm of the official's grant of authority.See id. at 448 ( quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). Whether an official possesses "final authority" is a question of state law. See id. at 447.
In Pembaur v. City of Cincinnati, Justice Brennan for the plurality provided an example of a "meaningful review or constraint" that would preclude a finding of final policymaking authority. See 475 U.S. 469, 483 n. 12 (1986). Justice Brennan explained the consequences of a case where a Board of County Commissioners established county employment policy and delegated to the County Sheriff the discretion to hire and fire employees pursuant to that policy. See id. In such a case, the county itself would not be liable if the Sheriff unconstitutionally exercised his or her authority, because the "decision to act unlawfully would not be a decision of the Board." Id.; see also Randle, 69 F.3d at 448 (discussing Pembaur, 475 U.S. at 483 n. 12).
Courts determining whether an individual holds "final policymaking" authority "examin[e] the legal chain of authority." See Randle, 69 F.3d at 448; see also Jantz v. Muci, 976 F.2d 623, 631 (10th Cir. 1992) (stating that if a school board "retains the authority to review [a school principal's decisions], even though it may not exercise such review or investigate the basis of the decision, delegation of final authority does not occur"). Further, the Tenth Circuit has emphasized that "any review procedure or constraints must be meaningful—as opposed to merely hypothetical—in order to strip an official of `final policymaking' authority." Randle, 69 F.3d at 449. A municipality claiming that an official does not have final policymaking authority therefore must offer "meaningful avenues of review" for the official's employment decisions. See Starrett v. Wadley, 876 F.2d 808, 818-19 (10th Cir. 1989).
Applying the case law to the present case, neither Ms. Workman nor Ms. Butterfield were final decisionmakers. The only evidence Ms. Mohanty points to to indicate that Ms. Workman had final policymaking authority—Ms. Mohanty's decision to remove flex time for the Recorder's Office—is insufficient to establish that Ms. Workman was a final policymaker within the meaning of section 1983. Ms. Workman's decision to remove flex time was subject to restriction. This restriction is found in Salt Lake County Policy No. 5610, which provides that "[a]dministrators may permit their employees to work a flexible work schedule within the standard work week so long as non-exempt FLSA employees do not exceed 40 working hours without prior approval." (Salt Lake County Policy No. 5610, Def.'s Reply Mem., Ex. 2, at 1.) Because Ms. Workman was meaningfully constrained "by policies not of . . . [her] own making," she did not have final policymaking authority to remove flex time. See Randle, 69 F.3d at 448.
Ms. Mohanty additionally states that Ms. Butterfield "had certain abilities to act that were not meaningfully constrained, meaningfully reviewed, and were within [her] grant of authority. (Pl.' s Opp'n Mem. at 22.) But other than this conclusory assertion, the record reveals nothing that would indicate that Ms. Butterfield enjoyed such discretion. See Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992) (discussing standard for summary judgment).
The court in Thomas v. Wichita Coca-Cola Bottling Co. explained, "Thus, when a movant claims that there is no genuine issue for trial because a material fact is undisputed, the nonmovant must do more than refer to allegations of counsel contained in a brief to withstand judgment. Rather, sufficient evidence (pertinent) to the material issue must be identified by reference to an affidavit, a deposition transcript or a specific exhibit incorporated therein." 968 F.2d at 1024.
Consequently, based on the record before it, the court concludes that Salt Lake County cannot be liable here under a final policymaker theory.
B. A Custom or Practice
For Salt Lake County to be held liable on the basis of custom, "there must have been a pattern of `persistent and widespread' unconstitutional practices which became so `permanent and well settled' as to have the `effect and force of law.'" Miller v. Kennard, 74 F. Supp.2d 1050, 1065 (D. Utah 1999) ( quoting Adickes v. S.H. Kress Co., 398 U.S. 144, 168 (1970)). Ms. Mohanty has not shown the existence of such a custom or practice.
The illegal practice in question must be "`widespread'— i.e., involving a `series of decisions.'" See Randle, 69 F.3d at 447 ( discussing City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 130 (1988), in parenthetical). In Randle, the court emphasized that the plaintiffs "failure to allege the existence of similar discrimination as to others seriously undermine[d] her claim that the City maintained a custom of discriminatory personnel practices." Id. The plaintiff in Randle, "an Asian woman of Filipino nationality," alleged the following discriminatory acts: (1) passing over the plaintiff for a promotion in favor of a white woman, id. at 445; (2) a pay differential between the plaintiff and a white employee holding the same job title id. and (3) filling a position for which the plaintiff applied with an outside white applicant id. at 446. The Tenth Circuit held that "based on the few incidents of discrimination alleged by Randle (which were all directed against her), . . . [the plaintiff] failed to establish a genuine dispute of material fact about whether the City had a custom of discriminatory employment practices." Id. at 447; see also Melton v. City of Oklahoma City, 879 F.2d 706, 725 n. 26 (10th Cir. 1989) (noting that the plaintiff offered evidence that the city acted similarly against another person in addition to the plaintiff), modified on other grounds, 928 F.2d 920, 922 (10th Cir. 1991) (en banc) (explicitly leaving panel's judgment on section 1983 liability intact); Randle, 69 F.3d at 447 (discussing Melton, 879 F.2d at 725 n. 26). But see Starrett v. Wadley, 876 F.2d 808, 820 (10th Cir. 1989) (holding that no widespread practice of sexual harassment existed where the plaintiffs supervisor had "engaged in isolated and sporadic acts of sexual harassment directed at a few specific female members of his staff").
In the present case, Ms. Mohanty points to "[t]he discrimination described in the EEO Manager's report" to support her claim that she has "establish[ed] a custom and policy of discrimination in the work place." (Pl.'s Opp'n Mem. at 21.) She contends that the EEO Report reflects serious racial and ethnic hostility towards not just Ms. Mohanty, but also individuals of "Asian and Hispanic background." ( Id.) The information in the EEO Report, however, which summarizes and analyzes twenty-one witness interviews—is inadmissible hearsay. ( See EEO Report, Def.'s Supp. Mem., Ex. 6, at 1); Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1555 (10th Cir. 1995) (stating that "Rule 56 precludes the use of inadmissible hearsay testimony in depositions submitted in support of, or in opposition to, summary judgment"); Jeffries v. State of Kansas, 147 F.3d 1220, 1224 n. 1 (10th Cir. 1998) (refusing to consider an employee's hearsay statements concerning sexual harassment on summary judgment "because there [was] no testimony from [the employee] herself, either in the form of a deposition or sworn affidavit"). Because Federal Rule of Civil Procedure 56 precludes the use of such hearsay evidence on summary judgment and because Ms. Mohanty has pointed to no applicable hearsay exception, the court does not consider the EEO Report. See Starr, 54 F.3d at 1555.
In addition to pointing to the EEO Report, Ms. Mohanty claims that the following establishes a discriminatory practice or custom: According to Ms. Mohanty, Ms. Butterfield made negative comments about Hispanic people; Ms. Butterfield told Ms. Mohanty that she was "really scared" that her son was dating "some oriental girl," and that she would "hate to see [her] grandchildren look different and look like oriental." (Pl.'s Opp'n Mem. at 11, ¶ 12; Mohanty Dep., Pl.'s Opp'n Mem., Ex. A, at 28.) Finally, Ms. Mohanty points to six alleged acts of retaliation allegedly directed against her. ( See Pl.'s Opp'n Mem. at 12-14; Def's Reply Mem. at 9.)
These alleged acts of retaliation are discussed below in the next section.
When this evidence is considered as whole, it simply is not sufficient to establish Ms. Mohanty's claim that Salt Lake County maintained a custom of discriminatory personnel practices. See Randle, 69 F.3d at 447.
Ms. Mohanty has failed to establish a genuine dispute of fact concerning Ms. Butterfield and Ms. Workman's final policymaking authority and concerning whether these individuals acted pursuant to a custom of discriminatory practices. The Defendants' motion for summary judgment therefore is GRANTED as to Ms. Mohanty' s section 1981 and section 1983 claims.
III. Are the Defendants Entitled to Summary Judgment on Ms. Mohanty's Title VII Retaliation Claim? A. The McDonnell Douglas Corp. v. Green Burden Shifting Analysis
Ms. Mohanty's First Cause of Action alleges that Salt Lake County unlawfully retaliated against her. ( See Complaint ¶¶ 10, 14, 15-17.) The McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973), burden shifting analysis that applies for allegations of discrimination applies to retaliation claims. See Kelley v. Goodyear Tire Rubber Co., 220 F.3d 1174, 1179 (10th Cir. 2000). A plaintiff claiming unlawful retaliation under Title VII must first establish a prima facie case of retaliation by demonstrating the following: "(1) [the employee] engaged in protected opposition to Title VII discrimination or participated in a Title VII proceeding; (2) she suffered an adverse employment action contemporaneous with or subsequent to such opposition or participation; and (3) there is a causal connection between the protected activity and the adverse employment action." Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257, 1263-64 (10th Cir. 1998) ( quoting Cole v. Ruidoso Mun. Schools, 43 F.3d 1373, 1381 (10th Cir. 1994)).
A plaintiff "may also establish [retaliation] directly, in which case the McDonnell Douglas framework is inapplicable." Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 550 (10th Cir. 1999). "To prevail via this direct method, a plaintiff must introduce direct or circumstantial evidence that the alleged retaliatory motive actually relate[s] to the question of discrimination in the particular employment decision, not to the mere existence of other, potentially unrelated, forms of discrimination in the workplace." Id. (internal quotation omitted). Ms. Mohanty has not argued that she satisfies that requirement.
Once a plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory, and non-retaliatory reason for the adverse employment action. See Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 550 (10th Cir. 1999). If the employer meets its burden, the burden shifts back to the employee to "show that the articulated reasons are a pretext for retaliation." Id. The employee can prove pretext by "showing either that a discriminatory reason more likely motivated the employer or that the employer's proffered explanation is unworthy of credence." Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1208 (10th Cir. 1999) (citation, alteration, and internal quotation omitted); see also Cisneros v. Wilson, 226 F.3d 1113, 1133 (10th Cir. 2000) (discussing burden shifting analysis in a retaliation case), overruled on other grounds by Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001).
Additionally, "[i]n Utah, a Title VII plaintiff must file a charge of discrimination with the appropriate state agency within 300 days after the alleged unlawful discriminatory practice occurs." Boyer v. Cordant Tech., Inc., No. 01-4205, 2003 WL 125367, at *1 (10th Cir. Jan. 16, 2003) (citing 42 U.S.C. § 2000e). This filing "is a prerequisite to a civil suit under Title VII." Id.
The Defendants do "not dispute that [Ms. Mohanty] met the first prong [of a McDonnell Douglas prima facie case of retaliation] by engaging in a protected activity." (Del.'s Reply Mem. at 11-12 n. 2.) The Defendants instead contend that Ms. Mohanty "fails to meet the second prong, an adverse employment action." ( Id.)
B. The Prima Facie Case
The Tenth Circuit liberally defines the phrase "adverse employment action." Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999). The Tenth Circuit, however, has "not . . . defined a set rule regarding what constitutes an `adverse employment action.'" Id. Courts instead must "take a case-by-case approach in determining whether a given employment action is `adverse.'" Id. Adverse employment actions do not include "mere inconvenience[s] or alteration[s] of job responsibilities." Sanchez v. Denver Public Schools, 164 F.3d 527, 532 (10th Cir. 1998) (internal quotation omitted). The Tenth Circuit has explained that Title VII "is neither a `general civility code' nor a statute making actionable the `ordinary tribulations of the workplace.'" Coors Brewing Co., 181 F.3d at 1178 ( quoting Gunnell v. Utah Valley State College, 152 F.3d 1253, 1265 (10th Cir. 1998)). Instead, "[r]etaliatory conduct other than discharge or refusal to rehire is proscribed by Title VII only if it alters the employee's compensation, terms, conditions, or privileges of employment, or adversely affects his or her status as an employee." Sanchez, 164 F.3d at 533 (alterations and internal quotations omitted).
In Sanchez, the Tenth Circuit held that the following "conduct did not significantly affect [the plaintiffs] employment status and therefore did not constitute adverse employment action remediable under Title VII": (1) the principal of the plaintiff teacher's school allegedly made several "ageist remarks" about the plaintiff; (2) the principal required the plaintiff, but not other teachers, to bring a doctor's note when the plaintiff was sick; (3) the principal "threatened to write [the plaintiff] up for insubordination when [the plaintiff] walked out of her office in the middle of a meeting to tend to her class"; and (4) the principal threatened to put the plaintiff "on a plan for improvement" if the plaintiff returned to her old school. Sanchez, 164 F.3d at 533. Additionally, the court held that the plaintiffs failure to obtain a particular teaching position was not an adverse employment action because the "purely lateral transfer" "would have paid the same salary and benefits she was already receiving, and would have involved substantially similar duties." Id. at 532, 535; see also Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 857 (10th Cir. 2000) (emphasizing that the plaintiff was "working in the same job, for the same pay, with the same benefits" and holding that "[m]oving [the plaintiffs] desk monitoring her calls, being `chilly' towards her, and suggesting that she might do better in a different department did not affect [the plaintiffs] employment status"). Not only must Ms. Mohanty establish that Defendants' conduct significantly affected her employment status, she must also show that the alleged adverse employment actions occurred "contemporaneous with or subsequent to" her engaging in protected activity. See Penny, 155 F.3d at 1263-64.
In August of 1999, when Ms. Mohanty learned that Ms. Butterfield had made negative ethnic remarks about her and another employee, she complained to Ms. Workman. According to Ms. Mohanty, after she complained about the ethnic remarks, Defendants retaliated against her by (1) removing flex time on October 1, 1999(2) denying her the right to work through her lunch hour on December 3, 1999(3) not permitting her to be "first in line to learn GIS [training]" (see Pl.'s Opp'n Mem. at 13, ¶ 7); (4) denying a promotion either on January 6, 2000 or in March of 2000; (5) Ms. Butterfield behaved poorly towards her; and (6) Ms. Mohanty was accused, and eventually cleared, of making nineteen errors at work.
Specifically, Ms. Mohanty contends that Ms. Butterfield would "dump" Ms. Mohanty's paycheck on her desk and make Ms. Mohanty feel "as if [she didn't] exist." (Mohanty Dep., Pl.'s Opp'n Mem., Ex. A, at 36.) Additionally, "in a meeting if [Ms. Mohanty had] a question, [Ms. Butterfield would] ignore [Ms. Mohanty]. She [would not] even respond to [Ms. Mohanty's] question." ( Id.)
As an initial matter, at least one act of retaliation alleged in Ms. Mohanty's Complaint and motion materials the October 1, 1999 removal of flex time—occurred more than 300 days before September 7, 2000, the date Ms. Mohanty first filed a discrimination charge with the state agency. Other than a brief statement by defense counsel at the hearing, neither party has addressed the 300-day time limitation period. Accordingly, Ms. Mohanty and the Defendants are ordered to submit simultaneous briefs addressing these issues no later than March 2, 2003.
The Defendants note that Ms. Mohanty has made at least one allegation of retaliation or discrimination that occurred "beyond the 380 day period prior to filing the EEOC charge, as the charge was filed September 7, 2000." (Def.'s Supp. Mem. at 9, ¶ 21.) The Defendants apparently are referring to 42 U.S.C. § 2000e-5(e)(1), Title VII's charge filing provision.
Of the alleged acts of retaliation which occurred within 300 days of Ms. Mohanty's September 7, 2000 filing, only the denial of a promotion and Mr. Butterfield's refusal to allow Ms. Mohanty to work through her lunch hour on December 3, 1999 arguably could have "alter[ed] [Ms. Mohanty's] compensation, terms, conditions, or privileges of employment, or adversely affect[ed] [Ms. Mohanty's] status as an employee." See Sanchez, 164 F.3d at 533 (internal quotation omitted). Ms. Mohanty, however, has not demonstrated how the refusal to permit her to work through the lunch hour on December 3, 1999 affected her compensation or her status as an employee. The alleged denial of a promotion therefore is the only alleged adverse employment action that occurred within 300 days of the date Ms. Mohanty filed a discrimination charge.
Nevertheless, Ms. Mohanty has not articulated what was the protected activity that allegedly triggered the Defendants' denial of a promotion. Accordingly, Ms. Mohanty is given until March 2, 2003, to file a supplemental memorandum, with references to relevant evidence now before the court, explaining her theory of retaliation based on her claim that the Defendants denied her a promotion. Ms. Mohanty must specifically indicate what was the protected activity she engaged in that caused the Defendants to retaliate by denying her a promotion. The Defendants must file a response to Ms. Mohanty's supplemental memorandum no later than two weeks after receipt of Ms. Mohanty's supplemental memorandum.
As discussed earlier, the Defendants dispute Ms. Mohanty's claim that they denied her a promotion; instead, they contend that they made a settlement offer to Ms. Mohanty which she refused.
ORDER
For the foregoing reasons, the Defendants' motion for summary judgment is GRANTED as to Ms. Mohanty's 42 U.S.C. § 1983 and 1981 claims. The court reserves judgment on Ms. Mohanty's claims under Title VII until the parties have submitted additional memoranda.
Counsel for Ms. Mohanty and the Defendants are ordered to file simultaneous memoranda by March 2, 2003, addressing the 300-day time period for filing and whether the court may consider the October 1, 1999 removal of flex time or any other alleged act of retaliation occurring prior to 300 days before September 7, 2000.
Ms. Mohanty's counsel is to file a memorandum by March 2, 2003, explaining her claim of retaliation based on Defendants' denial of a promotion. Defendants are to file an opposition to that memorandum within two weeks of having received Ms. Mohanty's memoramdum.