Delsa Brooke Sanderson v. Wyo. Highway Patrol

• Decision Date: 30 September 2020
• Docket Number: No. 19-8025,19-8025
• Citation: 976 F.3d 1164
• Parties: DELSA BROOKE SANDERSON, Plaintiff - Appellant, v. WYOMING HIGHWAY PATROL, Defendant - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

976 F.3d 1164

DELSA BROOKE SANDERSON, Plaintiff - Appellant,

v.WYOMING HIGHWAY PATROL, Defendant - Appellee.

No. 19-8025

United States Court of Appeals, Tenth Circuit.

FILED September 30, 2020

Bruce T. Moats, Law Office of Bruce T. Moats, P.C., Cheyenne, Wyoming, for Plaintiff-Appellant.

Jesse B. Naiman, Assistant Attorney General (Michael J. McGrady, Deputy Attorney General, on the brief), Cheyenne, Wyoming, for Defendant-Appellee.

Before BRISCOE, EBEL, and HARTZ, Circuit Judges.

EBEL, Circuit Judge.

In this action, Delsa Brooke Sanderson brought three claims against her employer, Wyoming Highway Patrol ("WHP"), under Title VII of the Civil Rights Act of 1964. Two of those claims—for retaliation and hostile work environment based on sex—are at issue on appeal.¹ WHP moved for summary judgment on all claims against it. In ruling on WHP's motion for summary judgment, the district court dismissed Sanderson's retaliation claim without prejudice because Sanderson had failed to exhaust her administrative remedies. The district court then granted WHP's motion for summary judgment on Sanderson's hostile work environment claim, concluding that Sanderson had not carried her burden of showing discrimination that was "sufficiently severe or pervasive." See Medina v. Income Support Div., 413 F.3d 1131, 1134 (10th Cir. 2005). Sanderson appeals both of those rulings.

Sanderson also appeals the district court's order granting WHP's motion to exclude Sanderson's designated expert witness, Linda Forst. The magistrate judge granted that motion, concluding that Forst's testimony was neither reliable nor relevant; the district court then affirmed that order.

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court's dismissal of Sanderson's retaliation claim, and we AFFIRM the court's order granting WHP's motion to exclude Sanderson's designated expert witness. However, we REVERSE the court's summary judgment ruling on Sanderson's hostile work environment claim and REMAND for further proceedings.

I. BACKGROUND

Delsa Brooke Sanderson joined the Wyoming Highway Patrol in 2007. Sanderson performed well during the first seven years of her career, earning numerous positive reviews, a nomination for Trooper of the Year in 2014, and a Colonel's Commendation Award.

Notwithstanding her strong performance, Sanderson faced obstacles as a woman in law enforcement. She endured rumors of sexual promiscuity and was called the "division bicycle," implying that she had sex with many of her colleagues. (Aplt. App. 107–08) She found it difficult to cultivate male friendships without rumors surfacing that she was having sex with those friends. Sanderson also faced rumors that she flirted and used sex to gain advantages like getting a new patrol car. In general, Sanderson faced resistance from her male colleagues because she is "a very assertive, direct individual, and as a female it's even a little bit harder to take." (Aplt. App. 304)

In 2015, Sanderson was promoted to Division O, which is tasked with protecting the governor and the state legislature. She was trained as WHP's first female K9 handler, and she was assigned to sweep the Wyoming legislature for explosives.

Sanderson faced resistance from her colleagues on Division O. When Sanderson joined the team, some troopers expressed the view that "Division O as a whole does not accept females." (Aplt. App. 324) A rumor circulated that Sanderson had obtained the position because she was having an affair with someone in a leadership position. Such rumors were repeated "quite routinely" and speculated about Sanderson having an affair with various leaders: "It went from captain to major, or, you know, someone different." (Aplt. App. 312–13) On more than one occasion, a rumor circulated that Sanderson had exchanged text messages of a sexual nature with a captain who supervised Division O.

On two occasions, Sanderson was accused of developing inappropriate relationships with individuals outside of Division O. A lieutenant reprimanded her for being too "familiar" with the deputy chief of staff to the governor. (Aplt. App. 495) The same lieutenant informed her that she had been accused of flirting with a local law enforcement officer during the governor's visit to the National High School Rodeo.

On one occasion, after being reprimanded for not timely answering her radio, Sanderson responded to a radio call while she was in the bathroom. When the trooper that made the call learned that she had been in the bathroom, the trooper told Sanderson not to answer the radio when she was "douching." (Aplt. App. 107)

In general, Sanderson felt ostracized by her colleagues. Sanderson recounted several instances in which she felt ignored. First, Sanderson recalled that the K9 team ignored her greetings while the team was at a conference in San Diego. Second, at a public event, two troopers were standing together. When Sanderson approached them to talk, one trooper immediately walked away. Sanderson asked the other how he was doing; the trooper replied, "good," then turned and walked away. (Aplt. App. 294–95) Third, Sanderson approached two troopers who were typing at a desk and talking to each other. The troopers had their backs to Sanderson. Three times Sanderson repeated "hey, guys, I got a question." When neither trooper responded, Sanderson went around the desk to make eye contact. She repeated "I got a question." One trooper said, "What's your question, Brooke?" She asked her question, and the same trooper responded, "Well, I don't know. Jonathan, do you know? Huh?" Then both troopers got up and left. (Aplt. App. 298–99) Fourth, Sanderson brought cinnamon rolls for the team to enjoy during a morning training. When she arrived at the training, she found that another team member had brought burritos for each team member except Sanderson.

In light of her treatment, Sanderson considered quitting. She sent a text message to a supervisor that read: "I have had enough of being treated like shit by my coworkers. It's no wonder no female makes it in the O division. The guys in the division make it down right miserable for any female." (Aplt. App. 192–93) Sanderson spoke with supervisors on at least four occasions about the challenges she was facing with her colleagues on Division O.

On February 16, 2016, an incident occurred during a training exercise that would trigger Sanderson's demotion. Sanderson was working with Mark Rispoli, a dog trainer that contracted with WHP.

Parts of the training were going poorly and frustrations were rising. At one point, Sanderson told Rispoli to stop being an "asshole." After that incident, Sanderson was disciplined, and on April 15, 2016, Sanderson was removed from Division O and demoted to her prior position. (Aplt. App. 218–28) Throughout this litigation, WHP has argued that Sanderson was not a good fit for Division O because she was abrasive, abrupt, and generally a poor communicator.

On October 27, 2016, Sanderson filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC"). She received a right to sue letter on October 19, 2017. Sanderson then initiated this lawsuit against WHP.

II. DISCUSSION

A. Retaliation

In ruling on WHP's motion for summary judgment, the district court dismissed Sanderson's retaliation claim without prejudice because she had failed to exhaust her administrative remedies. This court "review[s] the district court's legal determination that a plaintiff has failed to exhaust her administrative remedies de novo." Smith v. Cheyenne Ret. Inv'rs L.P., 904 F.3d 1159, 1164 (10th Cir. 2018).

Sanderson's retaliation claim arises under Title VII of the Civil Rights Act of 1964, which provides that it is unlawful "for an employer to discriminate against any of his [or her] employees ... because [the employee] has opposed any practice made an unlawful employment practice by [Title VII]." Fye v. Okla. Corp. Comm'n, 516 F.3d 1217, 1224 (10th Cir. 2008) (quoting 42 U.S.C. § 2000e-3(a) ). "A plaintiff normally may not bring a Title VII action based upon claims that were not part of a timely-filed EEOC charge for which the plaintiff has received a right-to-sue-letter." Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1181 (10th Cir. 2018) (quoting Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1194 (10th Cir. 2004) ). That requirement, known as the exhaustion rule, "derives from two principal purposes: ‘1) to give notice of the alleged violation to the charged party; and 2) to give the EEOC an opportunity to conciliate the claim, which effectuates Title VII's goal of securing voluntary compliance.’ " Smith, 904 F.3d at 1164 (quoting Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994), abrogated on other grounds by Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003) ).

"To advance these purposes ... [a] plaintiff's claim in court ‘is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC.’ " Id. (quoting MacKenzie v. City and Cty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005), abrogated on other grounds by Lincoln v. BNSF Ry. Co., 900 F.3d 1166 (10th Cir. 2018) ). The EEOC charge "must contain facts concerning the discriminatory and retaliatory actions underlying each claim." Id. (quoting Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) ). This court has held, "time and again, that 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." Id. at 1165 (emphasis in original).

Sanderson filed her Charge of Discrimination with the EEOC on October 27, 2016. In her Charge of Discrimination, she articulated the following facts to support her retaliation claim:

7. I engaged in what in good faith I believed to be protected activity under Title VII;

a. I informed my employer I was ... filing an [EEOC] complaint.

8. Subsequent to my

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