United States District Court, W.D. Oklahoma
DR. RACHEL TUDOR, Plaintiff,
SOUTHEASTERN OKLAHOMA STATE UNIVERSITY and THE REGIONAL UNIVERSITY SYSTEM OF OKLAHOMA, Defendants.
MEMORANDUM OPINION AND ORDER
J.CAUTHRON United States District Judge
Plaintiff was employed as a professor
at Southeastern Oklahoma State University. She advised
Defendants that she was transitioning from a male to a
female. Plaintiff alleges that following this announcement
she began suffering significant discrimination and
harassment. The alleged discrimination culminated in denial
of her application for tenure and dismissal from the
University. Defendants have filed a Motion for Summary
Judgment arguing the undisputed material facts and law
entitle them to judgment on each of Plaintiff's claims.
Plaintiff objects to Defendants' Motion and argues there
are questions of material fact remaining in this matter.
judgment is appropriate if the pleadings and affidavits show
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). “[A] motion for summary judgment
should be granted only when the moving party has established
the absence of any genuine issue as to a material
fact.” Mustang Fuel Corp. v. Youngstown Sheet &
Tube Co., 561 F.2d 202, 204 (10th Cir. 1977). The movant
bears the initial burden of demonstrating the absence of
material fact requiring judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). A fact is material if it is essential to the proper
disposition of the claim. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). If the movant carries
this initial burden, the nonmovant must then set forth
“specific facts” outside the pleadings and
admissible into evidence which would convince a rational
trier of fact to find for the nonmovant. Fed.R.Civ.P. 56(e).
These specific facts may be shown “by any of the kinds
of evidentiary materials listed in Rule 56(c), except the
mere pleadings themselves.” Celotex, 477 U.S.
at 324. Such evidentiary materials include affidavits,
deposition transcripts, or specific exhibits. Thomas v.
Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024
(10th Cir. 1992). “The burden is not an onerous one for
the nonmoving party in each case, but does not at any point
shift from the nonmovant to the district court.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672
(10th Cir. 1998). All facts and reasonable inferences
therefrom are construed in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
first challenge Plaintiff's ability to establish a prima
facie case of hostile environment. According to Defendants,
when examining Plaintiff's evidence there are an
insufficient number of instances where she faced any actions
which could be construed as hostile. Thus, Defendants argue,
Plaintiff has failed to demonstrate a work environment
permeated with intimidation and ridicule. See Morris v.
City of Colo. Springs, 666 F.3d 654, 656-69 (10th Cir.
2012) (gathering cases which hold that isolated incidents or
sporadic offensive behavior as opposed to a steady barrage of
opprobrious harassment, is not enough to make out a hostile
work environment claim, unless those few events amount to
such extreme behavior as physical or sexual assault). In
response, Plaintiff argues that she suffered more than a
handful of sporadic insults, incidents, or comments. Rather,
she argues that every day over the course of a four-year
period she had restrictions on which restrooms she could use,
restrictions on how she could dress, what makeup she could
wear. She also was subjected to hostilities from
administrators targeting her gender, such as using an
improper pronoun to refer to her and other gender-based
hostilities. Although Plaintiff's proof is not well
organized or her facts well presented, she has offered
sufficient evidence from which a reasonable jury could find
that her work place was filled with a sufficient amount of
offensive or insulting conduct that it was sufficiently
severe or pervasive. See Lounds v. Lincare, Inc.,
812 F.3d 1208, 1228 (10th Cir. 2015).
next argue that even if the Court finds a hostile environment
existed, Plaintiff's claims should fail as she failed to
take advantage of the preventive and corrective opportunities
that were available to her. See Faragher v. City of Boca
Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283 (1998), and
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
2257, 2270 (1998). Defendants argue that while employed at
Southeastern Oklahoma State University (“SEOSU”)
Plaintiff never submitted a complaint or grievance regarding
the allegedly harassing events. Plaintiff argues Defendants
have failed to demonstrate that the policies in existence at
the time she suffered harassment were sufficient or could
redress the hostilities she alleged. See Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 72-73 (1986), and
Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d
642, 653 (10thCir. 2013). According to Plaintiff, at the time
of her employment, Defendants did not have any policy
addressing transgender discrimination or the type of
hostility that she endured as a result of her status as a
transgender person. Indeed, the evidence provided by
Plaintiff demonstrates that, at the time Plaintiff was
subjected to the alleged harassment, the policies in
existence at SEOSU did not address transgender persons.
Whether or not Plaintiff should have understood that the
sexual harassment or sex discrimination policies could have
reached her claims and therefore should have been required to
file a report is immaterial, as the cases cited by Plaintiff
require a more specific policy before a defendant is entitled
to the Faragher/Ellerth defense.
next challenge Plaintiff's ability to establish a Title
VII claim of discrimination. According to Defendants,
Plaintiff is not subject to protection under Title VII
because her status as a transgender person is not a protected
class, relying on Etsitty v. Utah Transit Auth., 502
F.3d 1215, 1215, 1220 (10th Cir. 2017). The Court has
previously resolved Defendants' arguments related to the
Etsitty case, see Dkt. No. 34. Defendants
offer nothing in the present Motion to warrant changing that
next argue that Plaintiff fails to demonstrate that she was
treated less favorably than similarly situated employees
outside of her protected class, again relying on
Plaintiff's status as a transgender person, that is, that
she was neither male nor female. Defendants offer no legal
authority to support their claim other than the apparent
further reliance on the Etsitty case. Accordingly,
this argument, too, is foreclosed by the Court's prior
argue that Plaintiff fails to meet a prima facie case because
she cannot demonstrate the job was filled by someone outside
the protected class. Defendants misstate the applicable law.
The Supreme Court has specifically held that
age-discrimination plaintiffs need not show disparate
treatment as compared to co-workers outside the protected
class. See O'Connor v. Consol. Coin Caterers
Corp., 517 U.S. 308, 311-12 (1996). Although
O'Connor dealt with age discrimination, in
Perry v. Woodward, 199 F.3d 1126, 1135-40 (10th Cir.
1999), the Tenth Circuit extended the same basic point to
other forms of alleged discrimination. Plaintiff has
established a prima facie case.
argue that even if Plaintiff meets her prima facie case, her
claims still fail, as she cannot overcome the legitimate
non-discriminatory reason they have offered for her
termination; that is, Plaintiff cannot demonstrate pretext.
Defendants argue that their decision to deny Plaintiff tenure
was a subjective matter based upon decisions made at the
administrative level and that the Court should grant
deference to the administration's decisions on this
issue. As Defendants note, it is not necessary that the
reasons for their decision were correct, only that they
believed them to be correct. Tran v. Trustees of State
Colls. in Colo., 355 F.3d 1263, 1268-69 (10th Cir.
2004). In response, Plaintiff argues that she can demonstrate
pretext because she has offered evidence which suggests
substantial procedural irregularities in the decision to deny
her tenure. For example, she notes one of the decisionmakers
on her tenure initially refused to give her any reason for
the denial. Later, that same person planted a backdated
letter in her portfolio spelling out some rationales for the
denial. A second decisionmaker, McMillan, refused to provide
his reasons for denial and persisted even after the faculty
advisor committee ordered him to disclose them. Finally,
after the president's denial he directed McMillan to
write the letter giving the president's reason for the
denial of tenure. Plaintiff argues that each of these actions
demonstrate some weakness or implausibility in
Defendants' assertion that her tenure submission was
clearly insufficient. Plaintiff further directs the Court to
Dr. Parker's expert report demonstrating in some detail
that Defendants' evaluations of Plaintiff's
scholarship and service did not match the articulated
criteria for tenure and promotion evaluation.
consideration, the Court finds that Plaintiff has offered at
least some evidence demonstrating that Defendants'
reasons for denying her tenure were pretextual. That is,
Plaintiff's evidence demonstrates some weakness,
implausibility, inconsistency, or incoherencies in