Culp v. Remington of Montrose Golf Club, LLC.
No. 24-1022. 3/31/2025. D.Colo. Judge Hartz. Title VII of the Civil Rights Act—Colorado Anti-Discrimination Act—Inconsistent Special Verdicts—Punitive Damages.
March 31, 2025
Remington of Montrose Golf Club, LLC (Remington) operates a golf club and restaurant in Montrose where Culp and Peters (plaintiffs) worked as servers. DeSalvo also worked at Remington’s as a server/bartender and as an assistant floor manager. Plaintiffs alleged that DeSalvo sexually harassed them; however, neither woman reported the harassment at first. Rather, Culp applied to return to her previous job at Applebee’s, and when an Applebee’s manager asked why she wanted to leave Remington, Culp stated that she had been experiencing sexual harassment. Remington management heard about Culp’s complaint and met with her. Culp reported the harassment and wrote a brief statement about it. Remington’s general manager Feely then interviewed 10 female servers by asking each the same two questions. Remington subsequently suspended DeSalvo for five days without pay, demoted him from assistant floor manager to bartender, and put him on a 30-day probation. Plaintiffs then alleged that Remington retaliated against them for reporting DeSalvo by reducing Culp’s hours and assigning Peters to work with DeSalvo after his suspension, and that DeSalvo refused to fill Peters’s drink orders, cursed at her, and shoved her. Peters complained again to Feely but was unsatisfied with his response. Culp and Peters both resigned and brought claims for sexual harassment and retaliation against Remington for (1) hostile-work-environment sexual harassment under Title VII of the Civil Rights Act and the Colorado Anti-Discrimination Act (CADA); (2) retaliation for engaging in protected conduct, in violation of Title VII and CADA; and (3) tortious negligent supervision and retention under Colorado common law. Remington moved for summary judgment on all claims. The district court granted summary judgment on Peters’s retaliation claim but otherwise denied the motion. The other claims proceeded to trial. A jury rejected Peters’s remaining claims and returned special verdicts on Culp’s claims, finding that Remington did not violate her rights under Title VII but nonetheless awarding her punitive damages on a Title VII claim. The district court resolved this inconsistency by setting aside the punitive damages award.
On appeal, Peters contended that the district court erred by granting summary judgment to Remington on her Title VII and CADA retaliation claims. She maintained that Remington took materially adverse actions against her by conducting an insufficient investigation and by putting her on the same shift as DeSalvo after he returned from his suspension. Under Title VII and CADA, a discriminatory employment action must be materially adverse. First, the Tenth Circuit has held that an employer’s failure to investigate an internal discrimination complaint cannot support a retaliation claim unless the employee shows demonstrable harm. See Daniels v. UPS, 701 F.3d 620, 640–41 (10th Cir. 2012), abrogated on other grounds by Muldrow v. City of St. Louis, 601 U.S. 346 (2024). Here, Peters argued only that Remington’s investigation was materially adverse because it was “dismissive” of her allegations. But dismissiveness alone is not demonstrably harmful, so Peters failed to show material adversity. Second, the scheduling of Peters and DeSalvo was not a materially adverse action because Remington had limited ability to keep Peters and DeSalvo on separate shifts, since they both worked evenings; and Remington reasonably responded to DeSalvo’s harassment by significantly sanctioning him. Accordingly, the district court properly granted summary judgment on the retaliation claims.
Culp argued that the district court erred by rejecting the jury’s damages award, asserting that the district court should have either awarded her the punitive damages or ordered a new trial. Here, the jury acted contrary to the verdict form instructions and awarded Culp punitive damages without finding a Title VII violation. The district court tried to resolve the conflict by ignoring the punitive damages verdict, reasoning that because the jury ignored the written instructions on the verdict form when it answered the punitive-damages questions, its answers to these questions were superfluous and could be disregarded. However, the award violated the jury instructions and was contrary to law. The Tenth Circuit determined that the verdict was irreconcilably inconsistent, and there is no plausible way to reconcile the jury’s answers to the special interrogatories. It concluded that the jury was confused or abused its power, and a new trial is thus warranted.
The Tenth Circuit also addressed the issue of sending inconsistent special verdicts back to the jury, citing Dietz v. Bouldin, 579 U.S. 40 (2016), which supersedes earlier Tenth Circuit precedent. Dietz held that when a district court identifies an error in the jury’s verdict, the court has inherent power to rescind a jury discharge order and recall the jury for further deliberations. The Tenth Circuit thus advised that if a district court has concerns about inconsistent jury verdicts, rather than trying to reconcile the inconsistency, it can ask the jury to reconsider. And if a party does not raise the problems with the verdict to the court and request jury reconsideration, it forfeits the issue on appeal. The Tenth Circuit also stated that it would reverse the district court only if the complaining party establishes that there was a clear error that prejudiced it.
Lastly, because the problem with the special verdicts does not affect the verdicts in favor of Remington on Peters’s claims and on Culp’s negligent supervision claim, the Tenth Circuit addressed plaintiffs’ challenges to three evidentiary rulings under Fed. R. Evid. 403 and 404(b), which could have affected the verdicts on those claims. The Tenth Circuit determined that these evidentiary challenges were not preserved in district court.
The judgment on Peters’s claims and Culp’s negligent supervision claim was affirmed. The jury’s verdict on Culp’s harassment and retaliation claims was vacated and the case was remanded for a new trial on those claims.