Locke v. Choctaw City of

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

BELEN LOCKE, an individual, )

)

Plaintiff, )

)

-vs- ) Case No. CIV-20-0099-F

)

THE CITY OF CHOCTAW, )

Oklahoma, a governmental entity, )

)

Defendant. )

ORDER

Defendant, the City of Choctaw, moves for summary judgment on all

remaining claims. Doc. no. 74. Plaintiff Belen Locke responded, objecting to

summary judgment. Doc. no. 75. The City filed a reply brief. Doc. no. 78.

For the reasons stated in this order, the motion will be granted in part and

denied in part. The motion will be granted with respect to all claims other than

plaintiff’s sex discrimination claims, brought under Title VII and the OADA,

alleging that in April of 2018, plaintiff was not rehired as a full-time police officer

based on her gender.

The Claims

Following the court’s order at the motion to dismiss stage,1 the claims which

currently remain in this action are based on the City’s failure to rehire plaintiff as a

full-time police officer with the Choctaw Police Department (CPD) in April of 2018.

The remaining claims allege that plaintiff was not rehired: 1) due to discrimination

based on her race, color, sex or national origin; and 2) in retaliation for her

1 See, doc. no. 21, p. 25 (order on motion to dismiss, describing surviving claims).

participation in protected activity. The protected activity is plaintiff’s reporting of

race- or ethnicity-based comments in approximately May of 2014 through July of

2014. All remaining claims are brought under Title VII, 42 U.S.C. §§ 2000e et seq.,

and the Oklahoma Anti-Discrimination Act, 25 O.S. §§ 1101 et seq. (the OADA).

Summary Judgment Standards

Under Rule 56, Fed. R. Civ. P., summary judgment shall be granted 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. The moving party has the burden of

showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 325 (1986). A genuine issue of material fact exists when “there is

sufficient evidence favoring the non-moving party for a jury to return a verdict for

that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In

determining whether a genuine issue of a material fact exists, the evidence is to be

taken in the light most favorable to the non-moving party. Adickes v. S.H. Kress &

Co., 398 U.S. 144, 157 (1970). All reasonable inferences to be drawn from the

undisputed facts are to be determined in a light most favorable to the non-movant.

United States v. Agri Services, Inc., 81 F.3d 1002, 1005 (10th Cir. 1996). Once the

moving party has met its burden, the opposing party must come forward with

specific evidence, not mere allegations or denials, demonstrating that there is a

genuine issue for trial. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983).

The mere existence of a scintilla of evidence in support of the plaintiff’s position is

insufficient to avoid a properly supported summary judgment motion; there must be

evidence on which the jury could reasonably find for the plaintiff. Anderson, 477

U.S. at 252.

Burden-Shifting Framework

A plaintiff may rely on direct evidence or circumstantial evidence to establish

a Title VII discrimination or retaliation claim. Ward v. Jewell, 772 F.3d 1199, 1202

(10th Cir. 2014). Here, plaintiff’s evidence is circumstantial. Accordingly, she

seeks to avoid summary judgment by relying on the three-part burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

In analyzing both discrimination and retaliation claims, the burden-shifting

framework requires plaintiff to carry the initial burden of identifying evidence to

support a prima facie case; if plaintiff does so, defendant must offer a legitimate,

non-retaliatory or non-discriminatory reason for its decision (the decision not to

rehire plaintiff in 2018); if defendant carries that burden, plaintiff bears the ultimate

burden of demonstrating that defendant’s proffered reason is pretextual. Vaughn v.

Epworth Villa, 537 F.3d 1147, 1150-51 (10th Cir. 2008) (retaliation); DePaula v.

Easter Seals El Mirador, 859 F.3d 957, 969 (10th Cir. 2017) (discrimination). All of

which means that if, in response to a properly supported motion for summary

judgment, plaintiff carries her burdens under this framework, defendant will not be

entitled to summary judgment on the Title VII claims. The same analysis applies to

the counterpart OADA claims. See, Jones v. Needham, 856 F.3d 1284, 1292 (10th

Cir. 2017) (“The OADA is analyzed similarly to Title VII claims.”).

Claims Not Pressed:

Discrimination Based on Race, Color and National Origin

Plaintiff’s response brief repeatedly describes her claims as comprised of two

types of claims: retaliation claims and sex discrimination claims. See, e.g., doc. no.

75, p. 24 (“The adverse employment action here was Choctaw’s failure to hire her

as a full-time officer. This decision was either because of her report of racially

charged comments to her superiors [retaliation] or it was because she was a woman

or both.”); id. at p. 29 (“Locke was denied rehire for one or both of the following

reasons (1) she is a woman and/or (2) she reported the racially charged comments.”).

The court finds that plaintiff no longer presses, and therefore implicitly concedes,

her discrimination claims based on race, color and national origin.

Alternatively, plaintiff has not demonstrated a genuine issue of material fact

with respect to her race, color and national origin claims. Thus, even if plaintiff did

not intend to concede these claims, defendant would be entitled to summary

judgment.

For the reasons stated, defendant is entitled to summary judgment on

plaintiff’s discrimination claims based on race, color or national origin. This leaves

just two types of claims for further consideration: claims alleging that plaintiff was

not rehired in retaliation for protected activity, and sex discrimination claims

alleging that plaintiff was not rehired based on her gender.

Retaliation Claims

To state a prima facie case of retaliation under Title VII, plaintiff must show

that: “(1) she engaged in a protected activity; (2) she suffered an adverse

employment action; and (3) there was a causal connection between the protected

activity and the adverse action.” Vaughn v. Epworth Villa, 537 F.3d 1147, 1150

(10th Cir. 2008), quoting Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1123-24

(10th Cir. 2007). “The text, structure, and history of Title VII demonstrate[s] that a

plaintiff making a retaliation claim under [Title 42]§ 2000e–3(a) must establish that

his or her protected activity was a but-for cause of the alleged adverse action by the

employer.” Univ. of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338,

362 (2013).

Defendant takes no position on the first and second elements but argues that

plaintiff cannot prove the third element of her prima facie case. Specifically,

defendant argues there is no causal connection between plaintiff complaining, in

2014, about Lonnie Brewer’s and Robert Snyder’s alleged comments (the alleged

protected activity), and the City’s decision not to rehire plaintiff as a full-time police

officer in 2018.

As explained in O’Neal v. Ferguson Const. Co., 237 F.3d 1248, 1253 (10th

Cir. 2001), the amount of time between the protected activity and the failure to rehire

is important to the analysis.

A causal connection may be shown by “evidence of

circumstances that justify an inference of retaliatory motive, such

as protected conduct closely followed by adverse action.” Burrus

v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th

Cir.1982). Unless there is very close temporal proximity between

the protected activity and the retaliatory conduct, the plaintiff

must offer additional evidence to establish causation. See Conner

v. Schnuck Mkts., Inc., 121 F.3d 1390, 1395 (10th Cir.1997).

“[W]e have held that a one and one-half month period between

protected activity and adverse action may, by itself, establish

causation. By contrast, we have held that a three-month period,

standing alone, is insufficient to establish causation.” Anderson

v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999)

(citation omitted).

237 F.3d at 1253 (emphasis added).

Standing alone, the approximately four-year gap between plaintiff’s alleged

protected activity and the City’s failure to rehire her is too long to establish

causation. Accordingly, the court has considered whether there is any other evidence

to support an inference of a retaliatory motive and thus a causal connection which

would satisfy the third prima facie element.2 The court concludes there is

2 To show causation, plaintiff argues, for example, that Chief Daniel Wiedemann took no

corrective action in response to her complaints. There is a dispute over that issue. But presuming

no corrective action was taken, that failure occurred more than four years before the decision not

to rehire plaintiff in 2018. Plaintiff also argues that Wiedemann, the person she complained to, is

the same person who denied her application to be rehired. (Elsewhere in her brief, plaintiff argues

others were also involved in that decision.) In addition, plaintiff argues there was no legitimate

reason she should not have been rehired, as she was fully qualified for the position. However, the

fact that plaintiff was presumably qualified for the job is not more than a scintilla of evidence to

prove plaintiff was not rehired in 2018 due to protected activity in 2014.

insufficient evidence to satisfy that element. As a result, defendant is entitled to

summary judgment on the retaliation claims.

Although it is not necessary to take the analysis beyond this point, the court

will address the second and third steps of the burden-shifting framework as an

alternative basis for its ruling.

Defendant has identified a legitimate, non-retaliatory (and non-

discriminatory) reason for the decision not to rehire plaintiff as a full-time police

officer. Defendant has submitted evidence to show plaintiff was not rehired as a

full-time police officer because, after she resigned, she worked in a field other than

law enforcement for almost nine months, during which time, to Chief Wiedemann’s3

knowledge: plaintiff did not work a single shift as a reserve officer, plaintiff did not

work twenty hours per month (in any of those months),4 plaintiff did not obtain any

law enforcement-related continuing education, and plaintiff did not participate in

any firearms qualification training. See, defendant’s proposed undisputed material

fact (UMF) no. 53, citing Wiedemann affidavit at doc. no. 74-4, ¶¶ 16-17.

Because defendant has carried its burden at the second step, the burden shifts

back to plaintiff to identify evidence that defendant’s articulated reasons for its

decision were a pretext for retaliation.

A plaintiff may show pretext by demonstrating such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions with respect to

defendant’s proffered reasons for its action that a reasonable factfinder could

rationally find the proffered reasons unworthy of credence and hence infer that the

employer did not act for the asserted nondiscriminatory or nonretaliatory reasons.

3 Defendant presents evidence that Wiedemann is the person who decided not to select plaintiff to

complete the entire application process. Doc. no. 74-4, Wiedemann affidavit at ¶ 16.

4 Defendant asserts that twenty hours per month is the minimum number of hours required to be

worked by reserve officers.

Luster v. Vilsack, 667 F.3d 1089, 1092-93 (10th Cir. 2011), quoting Swackhammer

v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1167 (10th Cir. 2007). Other typical

methods for proving pretext include identifying evidence that the defendant’s stated

reasons are false, or that similarly situated individuals were treated differently, or

that the employer failed to follow the usual company practice in its treatment of the

plaintiff. Swackhammer at 1167-68. Evidence of pretext may take a variety of these

or other forms, as a plaintiff may not be forced to pursue any particular means of

demonstrating that a defendant’s stated reasons are pretextual. Id. at 1168, citing

Patterson v. McLean Credit Union, 491 U.S. 164, 187-88 (1989).

To show that defendant’s stated reasons for its decision, in 2018, not to rehire

plaintiff were a pretext for retaliation based on protected activity in 2014, plaintiff

relies on much the same evidence that she relies on to establish a prima facie case

of retaliation. See, e.g., n. 2, above. Neither that evidence, nor any other evidence

identified by plaintiff to support her retaliation claim, satisfies plaintiff’s burden at

the pretext stage.

Plaintiff has not carried her burden at the first or third stages of the burden-

shifting framework. Accordingly, defendant’s motion for summary judgment will

be granted with respect to the retaliation claims alleged under Title VII and the

OADA.

Sex Discrimination Claims

Plaintiff makes a prima facie case of gender discrimination by identifying

evidence that: 1) she belongs to a protected class (here, female), 2) she applied for

an available position for which she was qualified, and 3) she was rejected under

circumstances which give rise to an inference of unlawful discrimination. See

generally, Tabor v. Hilti, Inc., 703 F.3d 1206, 1216, n.4 (10th Cir. 2013) (claims

included failure to promote based on gender discrimination).5 Defendant takes no

position on plaintiff’s evidence regarding the first and second prima facie elements

but focuses, instead, on the third element, which requires evidence from which

gender discrimination may be inferred.

To satisfy the third element, plaintiff has identified at least one potential male

comparator, Ernesto Calamateo, who she contends was treated more favorably when

he was rehired than plaintiff was treated when she sought to be rehired.6 Plaintiff

has presented evidence that Calamateo left the CPD to work for the highway patrol

and then returned to the CPD without undergoing the full array of tests and steps

which plaintiff had to complete.

In response, defendant contends Calamateo is not a relevant comparator.

Defendant argues Calamateo was gone from the police force for only three months,

during which he worked in law enforcement. Defendant argues that these

circumstances made it unnecessary for Calamateo to go through certain steps in the

application process. There is a dispute over whether Calamateo should be

considered a similarly situated male applicant for rehire who was treated more

liberally than plaintiff was treated. At this stage, genuine disputes are called for the

plaintiff. Calamateo’s circumstances, while different from those of the plaintiff, are

an insufficient basis for summary judgment on the gender discrimination claims.

5 See, Tabor, 703 F.3d at 1216, n.4 (court prefers three-part version of the test although similar

four-part variations have been used in this circuit, citing Turner v. Public Service. Co. of Colorado,

563 F.3d 1136, 1142 (10th Cir. 2009)); see, e.g., Fischer v. Forestwood Co., Inc., 525 F.3d 972,

982-83 (10th Cir. 2008) (using a four-part test in a case involving a failure to rehire). Here, plaintiff

proposes a four-part test (doc. no. 75, p. 15) while defendant proposes a three-part test (doc. 74, p.

18). Either way, plaintiff’s prima facie burden is slight, and the result reached in this order would

be the same.

6 Plaintiff also argues that Preston Davis and Zachary Hill are potential comparators. At this stage,

the court disregards Davis and Hill because the evidence cited by plaintiff does not appear to be

based on the deponents’ personal knowledge about the hiring process applied to these individuals.

Moreover, Calamateo’s situation is not the only evidence cited by plaintiff to

support her gender discrimination claim. Although “stray remarks” often are not

admitted for purposes of a discrete discrimination claim, that is not necessarily the

case if plaintiff can link the remarks to personnel decisions or to the individuals

making those decisions. Heno v. Sprint/United Management Co., 208 F.3d 847, 856

(10th Cir. 2000). In other words, when remarks link-up with and support plaintiff’s

version of events, they are more than “stray remarks.”

Plaintiff has identified workplace remarks to support her claim that she was

not rehired due to her gender. She relies on evidence that Robert Bosse told other

officers, such as Anthony Libel7 and Jason Ammons,8 that he, Bosse, did not believe

women should be in law enforcement. Furthermore, she identifies evidence that

Bosse and Robert Snyder (see discussion below regarding remarks by Snyder) were

supervisors, and that they took part in the hiring process for the police department

because they sat on the hiring boards. Doc. no. 75-3, p. 113.

Plaintiff cites some additional remarks-type evidence which the court does not

consider at this stage because it is not clear whether this evidence is based on

firsthand knowledge. (This evidence is also not critical to the result.) For example,

plaintiff cites testimony from Tawana Gracy which indicates relevant remarks were

made not only by Bosse but also by Snyder. Doc. no. 75-4, p. 59 (“…officers

[Snyder and Bosse] saying they didn’t feel like they could be—officers—a police

officer wasn’t a profession for a woman, they were female, and didn’t think a female

7 Libel’s deposition, doc. no. 75-2, pp.11-12 (Q: “Were you aware of any statement made by

Officer Bosse to you, related to women in law enforcement? … And what was the statement, to

the best of your recollection?” A: “He [Bosse] didn’t believe that women should be in law

enforcement,” and “he never would be partnered with a female.”)

8 Ammons’ deposition, doc. no. 75-3, p. 91 (“Captain Robert Bosse had told me, on one occasion,

that he doesn’t believe women should be in law enforcement”), p. 159 (“Based on his [Bosse’s]

statements he made to me, he didn’t believe women should be in law enforcement.”).

could do the job.”). Plaintiff also cites Lidel’s testimony, expressing his belief that

females were not allowed to continue in the application process in the same way that

at least one male applicant (a man with a nervous system condition) was permitted

to, because Bosse and Wiedemann were “trying to maintain a male—a male staff.”

Doc. no. 75-2, pp. 15-16. As stated, none of this evidence is considered for present

purposes.

Defendant makes various arguments for rejecting plaintiff’s remarks-type

evidence. Defendant asserts lack of firsthand knowledge on the part of the

deponents. This argument is rejected because at least two witnesses have firsthand

knowledge of Bosse’s remarks. See, nn. 7, 8, above. Defendant argues that Bosse

and Snyder’s remarks should be disregarded because Bosse and Snyder were not

involved in the hiring process. This argument is rejected because, as previously

noted, plaintiff has identified evidence to the contrary. Defendant also argues that

Bosse and Snyder’s remarks are inadmissible hearsay. This argument is rejected

because the remarks are not offered for the truth of the matter asserted (they are not

offered to prove that women should not work as law enforcement officers).

In addition, defendant presents evidence that while Daniel Wiedemann was

Chief of Police, two females were offered positions as full-time police officers. That

argument is rejected as a basis for summary judgment. The fact that other females

were offered a position does not foreclose plaintiff’s claim that she was a victim of

gender discrimination.

Plaintiff has identified evidence to support the third prima facie element of

her gender discrimination claim, the only element actively contested by the

defendant at this stage. Plaintiff’s evidence includes at least one potential male

comparator who was treated more favorably than she was when she sought to be

rehired, as well as remarks by Bosse which link-up with plaintiff’s claim of gender

discrimination. Plaintiff has met her burden at the first step of the analysis.

This finding shifts the burden to defendant to articulate a legitimate,

non-discriminatory basis for its decision not to rehire plaintiff. Defendant has done

so, as set out in the portion of this order that addresses the retaliation claims.

Accordingly, the burden shifts back to plaintiff to show pretext. The same

evidence that satisfies plaintiff’s burden with respect to the third element of her

prima facie case also satisfies her burden to show pretext. To review, plaintiff has

identified (with supporting evidence) a potential male comparator who was treated

more favorably than plaintiff was treated with respect to the tests and steps that must

be completed when an applicant seeks to be rehired by the CPD. Plaintiff has also

identified evidence of remarks made by Bosse (a supervisor who plaintiff has cited

evidence to show had at least some type of role in hiring decisions), to the effect that

women should not work in law enforcement. A reasonable factfinder could

rationally conclude that defendant’s proffered reasons for its decision not to rehire

plaintiff are unworthy of credence. The factfinder could then infer that defendant

did not act for the proffered reasons but acted, instead, based on plaintiff’s gender.

As plaintiff has carried her burden at the first and third steps of the analysis,

defendant is not entitled to summary judgment on plaintiff’s sex (gender)

discrimination claims alleged under Title VII and the OADA.

Conclusion

After careful consideration, defendant’s motion for summary judgment is

GRANTED IN PART and DENIED IN PART.

The motion is GRANTED with respect to the discrimination claims, brought

under Title VII and the OADA, alleging that plaintiff was not rehired based on her

race, color or national origin. The motion is also GRANTED with respect to the

retaliation claims brought under Title VII and the OADA. Summary judgment is

GRANTED in favor of defendant, The City of Choctaw, and against the plaintiff,

Belen Locke, on these claims.

The motion is DENIED with respect to the sex discrimination claims, brought

under Title VII and the OADA, alleging that in April of 2018, plaintiff was not

rehired as a full-time police officer based on her gender. These claims survive for

trial.

IT IS SO ORDERED this 16" day of April, 2021.

STEPHEN P. FRIOT .

UNITED STATES DISTRICT JUDGE

20-0099p010.docx

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