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Davis v. Board of County Commissioners of Stephens County

United States District Court, W.D. Oklahoma

September 30, 2019

KRISTI DAVIS, formerly known as Kristi Howard, Plaintiff,
BOARD OF COUNTY COMMISSIONERS OF STEPHENS COUNTY, a political subdivision of the State of Oklahoma, Defendant.


          TIMOTHY D. DeGIUSTI, Chief United States District Judge.

         Before 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].


         The 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.

         During 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.

         The Lane Incident

         On 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. 1.

         Plaintiff 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.

         Allegations of Harassment Against Brosh

         On 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.” Id.

         In 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 6.

         Plaintiff 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 7.


         Summary 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)).

         The 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 249.


         Defendant 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.

         I. Plaintiff’s Title VII gender discrimination/sexual harassment claims against Defendant fail as a matter of law.

         Plaintiff 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.

         a. Brosh’s conduct was not actionable conduct under Title VII as it was infrequent and not sufficiently hostile or abusive.

         Defendant argues Brosh’s conduct did not rise to the level of actionable sexual harassment under Title VII. Motion at 29.

         Title 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 Oncale v. Sundowner Offshore ...

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