August 21, 2019

Colorado Court of Appeals: Refusal to Bake Cake Because of Opposition to Same-Sex Marriage Discriminatory

The Colorado Court of Appeals issued its opinion in Craig v. Masterpiece Cakeshop, Inc. on Thursday, August 13, 2015.

Public Accommodations Law—Same-Sex Marriage—Freedom of Speech—Free Exercise of Religion—Relation Back Doctrine of CRCP 15 (c)—CRS § 24-34-306(2)(b)(II).

This appeal arose from an administrative decision by the Colorado Civil Rights Commission (Commission), which upheld the decision of an administrative law judge (ALJ), who ruled in favor of Craig and Mullins (complainants) and against Masterpiece Cakeshop, Inc. (Masterpiece) and its owner, Phillips, on cross-motions for summary judgment. In July 2012, complainants visited Masterpiece and asked Phillips to design and create a cake to celebrate their same-sex wedding. Phillips declined, stating he doesn’t create wedding cakes for same-sex weddings because of his religious beliefs.

Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division (Division), alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act (CADA). Following a finding of probable cause, complainants filed a formal complaint with the Office of Administrative Courts, alleging Masterpiece had discriminated against them in a place of public accommodation because of their sexual orientation, in violation of CRS § 24-34-601(2).

The ALJ found in favor of complainants on cross-motions for summary judgment; the Commission affirmed and issued a cease and desist order requiring that Masterpiece (1) take remedial measures to ensure compliance with CADA, and (2) file quarterly compliance reports for two years with the Division.

On appeal, Philips claimed error in denying a motion to dismiss, alleging the Commission lacked jurisdiction to adjudicate the charges against him because only Masterpiece was named in the initial charge of discrimination with the Commission. The ALJ applied the relation back doctrine of CRCP 15(c) and found that adding Philips was permissible. The Court agreed and held that the relation back doctrine applied to a CADA charging document.

On the merits, Masterpiece argued it was error for the ALJ to conclude that its refusal to create a wedding cake was due to respondents’ sexual orientation, not its opposition to same-sex marriage. The Court disagreed. Because the act of same-sex marriage is closely correlated to respondents’ sexual orientation, it was not error for the ALJ to find that the refusal to create the wedding cake was because of their sexual orientation, in violation of CADA.

The Court considered whether the Commission’s application of the law violated Masterpiece’s rights to freedom of speech and free exercise of religion. Masterpiece argued that wedding cakes convey a celebratory message about marriage and therefore it was being unconstitutionally compelled to convey a celebratory message about same-sex marriage in conflict with its religious beliefs. The Court disagreed. The order merely requires that Masterpiece not discriminate against potential customers in violation of CADA, and such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections.

Masterpiece also contended that the Commission’s order unconstitutionally infringed on its right of free exercise of religion. The Court concluded that CADA is a neutral law of general applicability and therefore offends neither the First Amendment nor article II, § 4, of the Colorado Constitution. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: In Sex Discrimination Case, Genuine Issues of Fact Existed as to Plaintiff’s Title VII Claims

The Tenth Circuit Court of Appeals published its opinion in Kramer v. Wasatch County Sheriff’s Office on Tuesday, February 25, 2014.

Camille Kramer worked for the Wasatch County Sheriff’s Department from 2005 to 2007. During that time, she was the victim of repeated sexual harassment, sexual assault and rape at the hands of Sergeant Rick Benson.

Ms. Kramer sued Wasatch County, alleging that the sexual harassment she experienced at the hands of Sergeant Benson constituted sex discrimination prohibited by both Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)(1), and the Constitution, 42 U.S.C. § 1983. The district court granted summary judgment to Wasatch County. The court held that Sergeant Benson was not Ms. Kramer’s supervisor for Title VII purposes because he did not have the actual authority to unilaterally fire her. It further held that supervisor status could not be premised on apparent authority because no reasonable juror could find Ms. Kramer reasonable in believing Sergeant Benson had the power to fire her. Even assuming Sergeant Benson was Ms. Kramer’s supervisor, the court concluded that Wasatch County was not vicariously liable for his conduct because Ms. Kramer suffered no tangible employment action and, alternatively, because Wasatch County was entitled to prevail on its Faragher/Ellerth affirmative  defense as a matter of law.

Finally, the district court held that Wasatch County was not negligent and thus could not be liable for Sergeant Benson’s harassment under co-worker harassment standards. As to Ms. Kramer’s § 1983 claims, the court determined that Sheriff Van Wagoner was entitled to qualified immunity, and that the County was not liable because it had no pattern, practice, or custom of illegal sex discrimination. Ms. Kramer appealed on all claims.

Sexual harassment in the workplace is a form of sex discrimination prohibited by Title VII. In general, an employer is directly liable for an employee’s unlawful harassment if the employer was negligent with respect to the offensive behavior. If the harasser is a supervisor rather than merely a co-worker, however, the employer may be vicariously liable for the conduct, depending on the circumstances.  If the supervisor’s harassment culminates in a “tangible employment action,” the employer is strictly liable for sex discrimination, with no defense. If no tangible employment action occurs, the employer may still be vicariously liable for the supervisor’s harassment if the plaintiff proves the harassment was severe or pervasive, and the employer is unable to establish the affirmative defense announced in Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). For these reasons, whether the harasser was a “supervisor” within the meaning of Title VII is a critical threshold question in determining whether the employer can be held vicariously liable for the harassment.

The United States Supreme Court has held that a “supervisor” under Title VII is an employee whom the employer has empowered to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Importantly, however, an employee need not be empowered to take such tangible employment actions directly to qualify as a supervisor. A manager who works closely with his or her subordinates and who has the power to recommend or otherwise substantially influence tangible employment actions, and who can thus indirectly effectuate them, also qualifies as a “supervisor” under Title VII.

Sergeant Benson was Ms. Kramer’s direct supervisor. He completed her performance evaluations and made recommendations regarding her employment status. The record established that Ms. Kramer raised a genuine issue of fact as to whether the Wasatch County Sheriff’s Department effectively delegated to Sergeant Benson the power to cause tangible employment actions regarding Ms. Kramer by providing for reliance on recommendations from sergeants such as Benson when making decisions regarding firing, promotion, demotion, and reassignment.

Even if it was determined that Sergeant Benson lacked the actual supervisory authority described above, he could still qualify as a supervisor under apparent authority principles. In the usual case, a supervisor’s harassment involves misuse of actual power, not the false impression of its existence. But in the unusual case, apparent authority can suffice to make the harasser a supervisor for Title VII purposes, so long as the victim’s mistaken conclusion is a reasonable one. Under the circumstances here, given the County’s and the Sheriff’s manuals, there was a genuine issue of fact as to whether Ms. Kramer was reasonable in believing that Sergeant Benson had additional powers – such as the power to transfer, discipline, demote, or fire her. A jury was especially likely to conclude such beliefs were reasonable because Sergeant Benson repeatedly told Ms. Kramer he did in fact possess such powers.

If Sergeant Benson was a supervisor, Wasatch County would be strictly liable for his harassment of Ms. Kramer if it culminated in a tangible employment action. However, the Tenth Circuit held that none of the following actions constituted tangible employment actions: (1) the rape; (2) the bad performance evaluation that was never submitted; (3) Sergeant Benson denying her vacation days; and (4) Sergeant Benson refusing to give her road training and assigning her to the magnetometer full-time. The Tenth Circuit held that no tangible employment action occurred. Because these actions did not constitute “tangible employment action,” the County could not be held strictly liable for sex discrimination.

Even absent a tangible employment action, if Sergeant Benson qualified as a supervisor, the County could be vicariously liable for his severe or pervasive sexual harassment unless it could establish the affirmative defense announced in Faragher and Ellerth. This defense has two elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

The Tenth Circuit held that Wasatch County did not support its summary judgment motion with evidence that entitled it to judgment as a matter of law under either of the affirmative defense’s two prongs. Wasatch County’s evidence did not establish as a matter of law that the County took reasonable means to prevent and promptly correct sexual harassment. The County did not provide any evidence that the Sheriff Department’s interventions were reasonably calculated to end the harassment, deter future harassers, or protect Ms. Kramer. Not only did the investigation here fail to demonstrate that the County employed reasonable means to discharge its Title VII obligations, the Sheriff’s response to Ms. Kramer’s allegations suggested that he did not understand he had a Title VII compliance matter on his hands. There was no evidence the Department sought to improve its sexual harassment prevention program or otherwise reduce the risk of future harassment. On this record, there remained a genuine issue of fact as to whether the County’s response to Ms. Kramer’s sexual harassment complaint fell short of demonstrating that the County took reasonable efforts to discharge its duty under Title VII, as required to establish the affirmative defense.

Under prong two of the affirmative defense, Wasatch County’s evidence did not compel the conclusion that Ms. Kramer was unreasonable. Ms. Kramer did not lodge a formal complaint. However, she testified that on numerous occasions Sergeant Benson sexually assaulted her and subsequently told her to “be quiet” and “not say anything” or it would be “a career ender.” Sergeant Benson also threatened Ms. Kramer with a poor evaluation unless she would keep her mouth shut and not say anything. The court concluded that the record demonstrated a persistent theme: Sergeant Benson was an intimidating person with job-related power over Ms. Kramer who would sexually harass her and then threaten that she would lose her job if she complained.

Ms. Kramer’s fear that Sergeant Benson would make good on his threats was not per se unreasonable given that he did in fact take adverse job actions against her at work – denying her leave time, threatening her with a bad performance evaluation, and giving her long shifts on the magnetometer. Even if these actions did not rise to the level of a tangible employment action, a reasonable employee could well find a combination of threats and actions taken with the design of imposing both economic and psychological harm sufficient to dissuade him or her from making or supporting a charge of discrimination. This evidence raised a genuine issue of fact as to whether Ms. Kramer’s fears of Sergeant Benson were credible and reasonable because they were grounded in concrete reasons to apprehend that complaint would result in affirmative harm to the complainant.

Taken together, the evidence was also sufficient to raise a genuine issue of fact as to whether Ms. Kramer was reasonable in believing it would be futile and potentially detrimental to herself to complain. Accepting Ms. Kramer’s version of the facts, a picture emerged in which Sergeant Benson used his job-related power over Ms. Kramer to compel, pressure, or coerce her to do his bidding. While Ms. Kramer technically could have avoided some of the encounters, the record did not establish that she could have done so without incurring some form of adverse employment action.

Accordingly, the Tenth Circuit reversed summary judgment for Wasatch County on both prongs of the Faragher/Ellerth defense.

However, the court affirmed the district court’s holding that the County’s liability could not be premised on negligence. The record evidence viewed in the light most favorable to Ms. Kramer failed to support an inference that the County had actual or constructive knowledge of Sergeant Benson’s sexual harassment before Ms. Kramer’s car accident.

Finally, the County was not liable for sex discrimination under § 1983. As to institutional liability under § 1983, the County could only be liable for the actions of Sergeant Benson if it had a custom, practice, or policy that encouraged or condoned the unconstitutional behavior – here, workplace sexual harassment. Kramer had to demonstrate a direct causal link between the municipal action and the deprivation of federal rights, and she had to show that the municipal action was taken with deliberate indifference to its known or obvious consequences. Ms. Kramer had to establish that the County failed to prevent sexual harassment with deliberate indifference, that the need for more or different action was so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. The court held that, on the record in this case, no reasonable jury could find that the risk of sergeants sexually assaulting their subordinates was “so obvious” the County’s policymakers should have known about it.

The Tenth Circuit therefore AFFIRMED summary judgment as to the § 1983 claim, but REVERSED on the Title VII claim, which the court REMANDED for trial.

Tenth Circuit: Summary Judgment Affirmed for Employer in Title VII Case

The Tenth Circuit Court of Appeals published its opinion in Debord v. Mercy Health System of Kansas on Tuesday, November 26, 2013.

Sara Debord filed suit against her employer, Mercy Health Services of Kansas, for sexual harassment and retaliation in violation of Title VII. Debord claimed Mercy knew or should have known that her supervisor created a hostile workplace through unwanted touching and offensive sexual remarks. She also claimed that Mercy did not do enough to prevent sexual harassment in the workplace, and that, when she finally reported the harassment five years after it allegedly began, Mercy retaliated by firing her. The district court granted summary judgment for Mercy and ordered all parties to bear their own costs.

Debord argued that Mercy was directly liable for the harassment because it had actual notice of the harassment based on a complaint about the supervisor touching her made by another employee in 2001. The Tenth Circuit held that “notice of one instance of potential harassment of someone else cannot, without more, constitute actual notice of Debord’s sexual harassment three years later.” Debord also failed to show actual notice because she did not provide any evidence showing the extent, seriousness, or similarity of the prior misconduct.

Debord also argued Mercy had constructive notice of the harassment before 2009 when she told human resources about the unwanted touching. The court found evidence provided by Debord on this issue was not so “egregious, numerous, and concentrated” as to create a jury question on constructive notice.

The court applied the elements of the Faragher defense in determining the hospital could not be held vicariously liable. Debord failed to report the harassment even though Mercy provided sexual harassment training, annual reminders, an open-door policy with the management team, and an anonymous hotline to report harassment.

The court also found Debord failed to show pretext on her retaliation claim and affirmed summary judgment for Mercy. The court reversed the denial of costs to Mercy and remanded on that issue.

Tenth Circuit: District Court’s Summary Judgment in Favor of Forest Service on Sex Discrimination and Retaliation Claims Affirmed

The Tenth Circuit published its opinion in Conroy v. Vilsack on Monday, February 11, 2013.

Laura Conroy filed a Title VII lawsuit against her employer, the United States Forest Service, after it filled an open position with a male employee instead of her. The district court excluded the testimony of Ms. Conroy’s two experts and granted summary judgment to the Forest Service on Conroy’s claims of sex discrimination and retaliation. Conroy appealed.

As a threshold matter, the Tenth Circuit addressed Ms. Conroy’s contention that the district court erred in excluding the testimony of her experts, Dr. Dodd and Mr. Katz. Federal Rule of Evidence 702 assigns to district courts a gatekeeping  function with respect to the admissibility of expert opinions. The Tenth Circuit found that the district court did not abuse its discretion in excluding the testimony of Dr. Dodd and Mr. Katz.

Turning to Ms. Conroy’s two claims of sex discrimination and one claim of retaliation, the Tenth Circuit stated that a  plaintiff may prove a violation of Title VII either by direct evidence of discrimination or retaliation, or by following the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that rubric, the plaintiff must first establish a prima facie case of discrimination or retaliation. Then, the defendant may come forward with a legitimate, non-discriminatory or non-retaliatory rationale for the adverse employment action. If the defendant does so, the plaintiff must show that the defendant’s proffered rationale is pretextual. This framework applies to both discrimination and retaliation claims.

The Tenth Circuit first addressed Ms. Conroy’s contention that the district court improperly granted Defendant’s motion for summary judgment on her first discrimination claim. Conroy’s arguments focused exclusively on pretext, the third piece of the McDonnell Douglas framework. Generally, a plaintiff can establish pretext by showing the defendant’s proffered non-discriminatory explanations for its actions are so incoherent, weak, inconsistent, or contradictory that a rational factfinder could conclude they are unworthy of belief. The Tenth Circuit saw nothing in the agency’s decisionmaking process that would allow a reasonable jury to conclude that the process was used to discriminate against her on the basis of sex. In short, none of the evidence that Ms. Conroy advanced was sufficient to raise a genuine doubt about the Forest Service’s motivation in selecting Mr. Hager.

Ms. Conroy next asserted that the Forest Service’s decision to relax the qualification standards for the position and readvertise it—after she had already applied for it and been found qualified—constituted a separate act of sex discrimination. The the burden-shifting framework of McDonnell Douglas applied. Since the Forest Service articulated a legitimate, nondiscriminatory reason for its decision to lower the qualification standards and readvertise the Program Manager position, Ms. Conroy’s second claim on discrimination also failed. The Court concluded that no reasonable jury could find the Forest Service’s explanation for readvertising the position was unworthy of belief and pretextual.

Ms. Conroy finally asserted a retaliation claim arising out of the hiring process. Because plaintiff failed to establish the requisite temporal proximity between evidence of protected conduct closely followed by adverse action, the Court found her evidence of causation unpersuasive. She failed, therefore, to make out a prima facie case of retaliation.

AFFIRMED.

Tenth Circuit: Gender Discrimination Case Will Go Forward on Plaintiff’s Failure to Promote and Disparate Impact Discrimination Claims

The Tenth Circuit published its opinion in Tabor v. Hilti, Inc. on Monday, January 15, 2013.

Plaintiffs Ronica Tabor and Dacia Gray (“Plaintiffs”) worked as inside sales representatives at Hilti, Inc., and Hilti of North America, Inc. (“Hilti”). After being denied promotions to Account Manager, they filed individual claims for gender discrimination under Title VII and moved to certify a class of all female inside sales representatives at Hilti who were denied similar promotions. The district court refused to certify the class and granted summary judgment for Hilti on all claims. Ms. Tabor appealed her individual claims for failure to promote, retaliation, and disparate impact. Ms. Gray appeals her individual claims for failure to promote and disparate impact. Both Plaintiffs appeal denial of class certification.

The Tenth Circuit reversed with respect to  Ms. Tabor’s individual claim for failure to promote, concluding that Ms. Tabor’s claim survived summary judgment under either the direct evidence or McDonnell Douglas standard.

The Tenth Circuit affirmed the district court’s grant of summary judgment on Ms. Tabor’s individual claim for retaliation agreeing with the district court that she had met the first part of her prima facie burden to show that she engaged in protected opposition to discrimination, but failed to show that Hilti took adverse action against her because of this opposition.

The Court reversed the district court’s rejection of Ms. Tabor’s individual claim for disparate impact discrimination. Applying Carpenter v. Boeing Co., 456 F.3d 1183 (10th Cir. 2006), the Tenth Circuit held that Ms. Tabor established a prima facie case of disparate impact discrimination.

Regarding Ms. Gray’s individual claim for failure to promote/deterrence, the Tenth Circuit affirmed the district court’s dismissal of this claim because she did not show she was qualified for a promotion.

The Tenth Circuit also affirmed the district court’s dismissal of Ms. Gray’s disparate impact discrimination claim, because Hilti offered undisputed evidence that multiple managers warned Ms. Gray about performance and disciplinary problems.

Finally, the Tenth Circuit affirmed the district court’s refusal to certify the class. The requirements for class certification are outlined in Rule 23 of the Federal Rules of Civil Procedure. Plaintiffs had not shown “there are questions of law or fact common to the class” as required by Rule 23(a)(2).

AFFIRMED in part and REVERSED in part.

Tenth Circuit: Individual Plaintiffs Barred From Bringing Title VII Pattern-or-Practice Claims

The Tenth Circuit issued its opinion in Daniels v. United Parcel Service, Inc. on Tuesday, December 11, 2012.

Regina Daniels worked for United Parcel Service (UPS) as a dispatch specialist in a position that covered different shifts. She applied for promotions in 2005 and 2006 but, contrary to UPS policy, her manager never assessed her for the positions and UPS never followed up with her. She also had been training for the busiest shift, the “twilight window,” when a new policy was instituted that only full-time supervisors could work that shift. Her training ended. In 2008, Daniels met with UPS Human Resources to complain about her replacement in the cover position and assignment permanently to one shift and UPS’s lack of follow up to her promotion applications. In November 2008, Daniels filed an EEOC charge. The district court granted UPS’s motion for summary judgment on Daniels’s Title VII, ADEA, and Kansas state law claims.

The Tenth Circuit held that Daniels did not file her EEOC charge in a timely manner. Regarding the failure to promote claim, her conversation with human resources was not the relevant trigger date because it did not inform her of an adverse employment action. The court also rejected her arguments that 1) the futility doctrine applied, 2) the failure to promote was a compensation decision so a cause of action accrued with each paycheck and 3) the Morgan decision was overruled by the Fair Pay Act.

The court also held that individual plaintiffs may not bring pattern-or-practice claims so her denial of training claim also failed. Thus, she could only bring it in 2008 if the denial of training was a continuing violation and the court held it was not.

The court held that Daniels’s permanent assignment to night shift and replacement by a younger male in the cover position was not discrimination because it was not an adverse employment action. It also rejected her wage discrimination claim. The court held that to make out a prima facie case of wage discrimination, she would have had to perform substantially similar duties to full-time supervisors and because there were significant duties she did not perform, she failed. Finally the court held Daniels failed to establish a prima facie case of retaliation and affirmed summary judgment for UPS.