United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI, Chief United States District Judge.
the Court is the Motion and Brief for Summary Judgment [Doc.
No. 36] filed by Defendant Board of County Commissioners of
Stephens County pursuant to Fed.R.Civ.P. 56(a). Plaintiff
Kristi Davis filed a Response in Opposition [Doc. No. 55], to
which Defendant has replied [Doc. No. 61] and sur-replied
[Doc. No. 67].
following are undisputed facts unless otherwise indicated.
Plaintiff’s employment at the Stephens County
Fairgrounds (“Fairgrounds”) began on November 20,
2013. Motion, Doc. No. 36, Ex. 1, 118:2–8. During
Plaintiff’s employment, Mike Anderson
(“Anderson”) was the Stephens County Fairgrounds
Director. Id. at Ex. 5, 100:21–25. Anderson
reported to the County Commissioner over the Fairgrounds,
David McCarley (“McCarley”) in 2016 and Todd
Churchman (“Churchman”) in 2017. Id. at
Ex. 2; Ex.5. Anderson supervised Lyndol Brosh
(“Brosh”), and Brosh, in turn, was
Plaintiff’s supervisor. Id. at Ex. 1,
125:14–20. Plaintiff considered herself on friendly
terms with Anderson and McCarley and felt they were
approachable. Id. at Ex. 1, 143:6– 25.
Plaintiff’s employment, a Stephens County written
policy prohibited sexual harassment, discrimination, and
retaliation against its employees (“Policy”).
Id. at Ex. 9, 102–03. According to the Policy,
if an employee suspected a violation, the employee was to
report the suspect conduct to a supervisor within three
calendar days of the offense. Id. Plaintiff, Brosh,
and Shannon Lane (“Lane”)-Plaintiff’s
co-worker- all acknowledged receipt of the Policy.
Id. at Ex.1, 120:1–16; Ex. 11; Ex. 12.
March 17, 2016, after seeing a cat inside the Fairgrounds,
Lane made the following remark in Plaintiff’s presence:
“[Y]our pu*** is hungry” (“Cat
Comment”). Id. at Ex. 13; Ex. 4. The Cat
Comment was timely reported to Anderson, who reported it to
McCarley. Id. at Ex. 2; Ex. 14. Four days later, on
March 21, 2016, McCarley and Anderson met with and
reprimanded Lane for the Cat Comment. Id. at Ex. 2,
15:14–25; Ex. 14. On May 4, 2016, McCarley held a
meeting with Fairground employees at which McCarley reviewed
the Stephens County sexual harassment policies. Id.
at Ex. 16; Ex. 17. Plaintiff is satisfied with the way
Stephens County handled the Cat Comment. Id. at Ex.
asserts that after she reported the Cat Comment, her
co-workers alienated Plaintiff and refused to help her,
despite their duty and need to do so. Id. at Ex. 1,
151:18–22; Complaint at 3, ¶ 17. Nevertheless,
there was no explicit indication that when Plaintiff was
allegedly denied help it was because of the Cat Comment.
Response at 5. Plaintiff’s co-workers would say:
“We can’t say certain things around
Kristi.” Id. at 4. Plaintiff also asserts
that, after the Cat Comment, her co-workers left rooms after
she entered them. Motion at Ex.1, 146: 6–22,
150:8–20. Plaintiff alleges she brought these incidents
to Brosh’s attention, but Brosh failed to take any
action and subsequently started sexually harassing her.
Response at 1–2, 11.
of Harassment Against Brosh
October 16, 2016, Brosh allegedly told Plaintiff he dreamed
about them kissing, and Brosh said that Plaintiff was a good
kisser. Motion at 6; Response at 5. Again, in November 2016,
Brosh told Plaintiff he had a dream about them kissing.
Id. at Ex. 1, 129:22–25. In early December
2016, Brosh told Plaintiff he had a dream in which he and
Plaintiff went “all the way” and that “it
was great.” Id. at Ex. 1, 130:1–3. On
December 21, 2016, Plaintiff and Brosh exchanged text
messages. Id . at Ex. 1, 130:16– 20. In the
December 21, 2016 text conversation, Brosh asked Plaintiff
about her dream and whether Brosh tried to kiss Plaintiff in
the dream. Id. As part of the text conversation,
Plaintiff denied any kiss attempt in the dream and Brosh told
her she needed to “have better dreams than that.”
December of 2016, Plaintiff claimed Brosh put his arm around
her and told her that she should come to him, not Anderson,
about “things that [were] going on at the
fairgrounds” and said, “OK little buddy.”
Id. at Ex. 1, 130:4–11. Plaintiff also claimed
Brosh would stop by Plaintiff’s house and make
non-sexual small talk with her, asking about
Plaintiff’s personal life and romantic interests.
Id. at 130:12–14, 134:15–25; Response at
did not report these incidents within three days of their
occurrence, as required by the Policy. Id. at Ex.
18. It was not until January 31, 2017, that Plaintiff
reported Brosh’s alleged behavior to Anderson.
Id. at Ex. 1, 132:9–19. Two days later, on
February 1, 2017, Anderson relayed the allegations about
Brosh to Commissioner Churchman. Id. at Ex. 5,
31:4–24, 32:19–33:1–2. Within minutes of
Anderson’s report to Churchman, Churchman relayed
Plaintiff’s allegations to the Stephens County District
Attorney. Id. at Ex. 5, 34:13-25, 35:1-8. On
February 2, 2017, the District Attorney’s office
interviewed Plaintiff. Id. at Ex. 1, 16:1-7. During
the interview, Plaintiff said Brosh had “never touched
her inappropriately and that the extent [of the alleged
sexual harassment] was just comments that she believed were
sexual in nature.” Id. at Ex. 21, 70. Ex. 21.
Plaintiff testified at her deposition in this case that she
did not mention Brosh stopping by her house during the
investigation because she did not consider it a “sexual
gesture, ” and did not feel it was
“inappropriate, ” though Plaintiff did feel
uncomfortable with Brosh touching her. Motion at Ex. 1,
144:2–19, 197:6–19, 199:2–22; Response at
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); Universal Underwriters Ins. Co. v. Winton,
818 F.3d 1103, 1105 (10th Cir. 2016). “An issue is
‘genuine’ if there is sufficient evidence on each
side so that a rational trier of fact could resolve the issue
either way, ” and “[a]n issue of fact is
‘material’ if under the substantive law it is
essential to the proper disposition of the claim.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670
(10th Cir. 1998) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
Court’s inquiry must be whether the evidence, when
viewed “through the prism of the substantive
evidentiary burden, ” Anderson, 477 U.S. at
254, “presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Id. at
251–52. Although the Court views all facts in the light
most favorable to the nonmoving party at the summary judgment
stage, “there is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party.” Id. at
moves for summary judgment on Plaintiff’s claims for
relief under Title VII for: (1) gender discrimination/sexual
harassment; (2) retaliation; and, (3) pay disparities.
Defendant also moves for summary judgment on
Plaintiff’s pay disparity claim asserted under the
Equal Pay Act. The Court will address each, in turn.
Plaintiff’s Title VII gender discrimination/sexual
harassment claims against Defendant fail as a matter of
argues that Defendant discriminated against her on the basis
of her gender (1) through Brosh’s alleged sexual
harassment and (2) by subjecting Plaintiff to a hostile work
environment following Plaintiff’s reporting of
Lane’s Cat Comment. Response at 27.
Brosh’s conduct was not actionable conduct under Title
VII as it was infrequent and not sufficiently hostile or
argues Brosh’s conduct did not rise to the level of
actionable sexual harassment under Title VII. Motion at 29.
VII forbids actions taken based on sex that
“discriminate against any individual with respect to
[her] compensation, terms, conditions, or privileges of
employment.” 42 U.S.C. § 2000e–2(a)(1).
Sexual harassment is actionable under Title VII only if it is
“so ‘severe or pervasive’ as to
‘alter the conditions of [the victim’s]
employment and create an abusive working
environment.’” Faragher v. Boca Raton,
524 U.S. 775, 786 (1998) (quoting Meritor Savings Bank,
FSB v. Vinson, 477 U.S. 57, 67 (1986)); see also
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