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Sanderson v. Wyoming Highway Patrol.

No. 19-8025. D.Wyo. Judge Ebel. Title VII of the Civil Rights Act—Retaliation—Exhaustion of Administrative Remedies—Hostile Work Environment—Summary Judgment—Exclusion of Expert Witness Testimony.

September 28, 2020

Plaintiff joined the Wyoming Highway Patrol (WHP) in 2007 and received numerous accolades for her work. Notwithstanding her performance, she endured rumors of sexual promiscuity. In 2015, plaintiff was promoted to Division O, which is tasked with protecting the governor and state legislature. She was trained as WHP’s first female K9 handler. Plaintiff faced extensive resistance from her colleagues in Division O, including derogatory comments based on gender, and ostracization. Plaintiff spoke with supervisors on at least four occasions about the challenges she was facing with her colleagues. In 2016, following an argument with a dog trainer, plaintiff was removed from Division O and demoted to her prior position. Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and received a right to sue letter in 2017.

Plaintiff brought three claims against the WHP under Title VII of the Civil Rights Act. WHP moved for summary judgment on all claims. The district court dismissed plaintiff’s retaliation claim without prejudice due to failure to exhaust administrative remedies. It granted WHP’s motion for summary judgment on the hostile work environment claim, concluding that plaintiff had not carried her burden of showing “sufficiently severe or pervasive” discrimination. The district court also excluded the testimony of plaintiff’s expert witness under F.R.E. 702. Following a trial, the jury entered a verdict in favor of WHP on plaintiff’s discrimination claim.

Plaintiff appealed the dismissal of her retaliation claim, alleging that the facts raised in her response to WHP’s position statement put WHP on notice as to her theory of retaliation as alleged in her complaint. An EEOC charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim. The reasonable and likely scope of the investigation is determined by the allegations contained in the charge itself, rather than in the charge and any responsive documents, including the rebuttal. Here, plaintiff’s EEOC charge was based on events that occurred after her demotion, while her complaint alleged that she complained to supervisors about unequal treatment before her demotion and was demoted as a result of those complaints. Therefore, the charge did not put WHP on notice as to plaintiff’s theory of pre-demotion retaliation in the complaint. Accordingly, the district court properly dismissed the retaliation claim for failure to exhaust administrative remedies.

Plaintiff also challenged the district court’s exclusion of her endorsed expert witness, who would have testified about gender stereotypes in law enforcement. The district court concluded that the testimony was not reliable because the expert did not explain how her experience led to her conclusions, and it was not relevant because gender stereotypes are within the juror’s common knowledge and experience. Plaintiff failed to show that the district court abused its discretion in excluding the expert testimony on these bases.

Plaintiff also appealed the district court’s summary judgment on the hostile work environment claim. To sustain a hostile work environment claim, a plaintiff must show that (1) he or she was discriminated against because of sex, and (2) the discrimination was sufficiently severe or pervasive such that it altered the terms or conditions of the employment and created an abusive work environment. Here, plaintiff presented evidence that she faced persistent rumors relating to sexual relationships and there was a male-dominated environment in Division O. A jury could find that the cited acts, which were more than isolated and fleeting, constituted a hostile work environment. Therefore, the district court erred in entering summary judgment.

The dismissal of the retaliation claim without prejudice and the order excluding the testimony of plaintiff’s expert witness were affirmed. The ruling that WHP was entitled to summary judgment on the hostile work environment claim was reversed and the case was remanded for further proceedings.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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