Opinion
No. CIV.A. 99-M-1299.
May 8, 2003
Patrick Francis Carrigan, Faegre Benson, LLP-Boulder Colorado, Boulder, CO, David Joel Dansky, Chambers Dansky Mulvahill, Denver, Co, Leslie C. Hansen, Leslie C. Hansen, P.C., Denver, CO, for Cynthia Duncan.
Charles L. Casteel, Janet Savage, Davis, Graham Stubbs, Denver, CO, Daniel E. Friesen, Hale Friesen, LLP, Denver, CO, Terrance R. Kelly, James E. Hubbell, Kelly/Haglund/Garnsey Kahn LLC, Fenver, CO, for Denver Dept. of Safety Manager.
ORDERS ON MOTIONS FOR SUMMARY JUDGMENT
Cynthia Duncan began her employment with the Denver Police Department ("DPD") in 1979. Her first assignment after graduating from the Denver Police Academy was in District 4 where she served until 1984 when she transferred to District 1. In 1988, she became a detective and was assigned to the Crimes Against Property Department within the Detective Bureau. She transferred to the Crimes Against Persons Department in a career development move in 1991 where she served until July, 1995, when she moved to the Internal Affairs Bureau. Ms. Duncan was promoted to Sergeant. Following normal practice, that promotion required that she be reassigned to street duties and she went back to District 4.
On April 14, 1998, Ms. Duncan filed a charge of sex discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC"). In that charge, she made the following allegations:
I. PERSONAL HARM: During the course of my employment as a Police Officer, I have been subjected to sexual harassment, retaliation and different terms and conditions of employment.
II. RESPONDENT'S DEFENSE: Despite my complaints to my superiors and the Department of Internal Affairs, no effective action has been taken.
III. DISCRIMINATION STATEMENT: I believe that I have been discriminated against because of my gender, female, and in retaliation for my having complained of discrimination, inasmuch as:
a. My co-workers circulated sexual gossip about me and made sex innuendos about my having affairs with several superiors.
b. An anonymous letter with sexual references about me was sent to the home of one of my co-workers, with threats of sending one to my house, stating that receipt of the letter will cause my husband to kill me.
c. I was placed under surveillance by one of my co-workers.
d. My supervisor told me that I would have to submit a picture of my bruised buttocks, if I wanted to file a complaint of physical assault against my co-worker.
e. Derogatory names were used by one of my supervisors in refer female anatomy.
f. One of my supervisors has a history of using derogatory comments about women, as does one of my peers.
g. Other female officers are also harassed.
h. The harassment is pervasive and department-wide and represents a continuing pattern of harassment.
Ms. Duncan was transferred to the DPD Training Academy in August, 1999, and in December, 1999, she was transferred to Traffic Operations in the Photo Radar Unit. Ms. Duncan went on medical leave in June, 2000, and filed the complaint in this lawsuit on July 8, 1999. Ms. Duncan was given a disability retirement in the summer of 2000.
These dates were obtained from pages 2-3 of the plaintiff's response brief. Ms. Duncan testified, however, that she went on medical leave in June 1999 after she complained about an officer while she was in traffic. (Duncan Depo., pp. 840, II. 23 to 842 II. 20.) She testified that she went to traffic in December 1998. (Duncan Depo., p. 50, II. 11-15.) Further, Ms. Duncan's counsel stated during oral argument that Ms. Duncan was transferred from District 4 to the Academy in the summer of 1998.
The defendants filed motions for summary judgment which have been fully briefed with the submission of deposition testimony and exhibits. Oral argument was heard. There are many disputes concerning the facts. Accordingly, all of the proposed evidence must be considered in the light most favorable to the plaintiff without making credibility determinations on disputed testimony.
The City contends that the Title VII claims should be dismissed because they are barred by the time limitation requiring that the administrative charges must be filed no later than 300 days following discriminatory or retaliatory conduct. Accordingly, it is argued that the court should consider only conduct occurring on or after June 18, 1997. Both defendants argue that the claims under 42 U.S.C. § 1983 are barred by the two-year statute of limitations. Additionally, both defendants contend that the plaintiff's proffered evidence is not sufficient for a reasonable jury to find liability against either of them for gender discrimination based on a hostile work environment or for retaliation for complaints because the complained of conduct was not sufficiently severe and pervasive to affect Ms. Duncan's terms and conditions of employment and because no causal connection has been shown between her complaints and any subsequent adverse employment action.
The time limitations under Title VII must be considered under the continuing violation doctrine announced by the Supreme Court in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
In that case, the Court recognized a difference between discrete discriminatory and retaliatory acts and a hostile work environment claim, holding that because a hostile work environment requires proof of repeated discriminatory conduct, the claim is not necessarily barred by the statutory time limitations. More specifically, the court held that:
A charge alleging a hostile work environment claim, however, will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period.Id. at 122, 122 S.Ct. 2061.
In applying that ruling, this court must analyze the proposed evidence to determine whether the plaintiff can establish the essential elements of a hostile work environment claim as developed by the opinions deciding Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) and Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
As Justice Thomas wrote in Morgan, the statutory language of Title VII prohibits discriminatory employment practices and a hostile sexual work environment becomes a discriminatory practice as a result of "the cumulative [e]ffect of individual acts." Morgan at 115, 122 S.Ct. 2061. In Harris, the Court repeated the operative language from Meritor that Title VII is violated when the workplace is permeated with "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris at 21, 114 S.Ct. 367 (internal quotation marks omitted). The statute of limitations defense and the viability of the plaintiff's Title VII claim in this case depend upon a detailed factual analysis. The Tenth Circuit Court of Appeals opinion in Gross v. Burggraf Const. Co., 53 F.3d 1531 (10th Cir. 1995) is helpful as guidance.
In her response brief, the plaintiff has listed 58 events claimed to be acts of gender harassment with references to evidentiary support for them. These allegations are grouped according to Ms. Duncan's years of service in her departmental assignments. The City's briefs respond to these allegations with references to the evidentiary record regarding DPD's responses to the complaints made by the plaintiff during her career. A chart summarizing these submissions, attached as Appendix A, demonstrates that the plaintiff is unable to connect these events into a timely, actionable discriminatory employment practice.
In addition, there were at least two other IAB investigations of events which were not included in Ms. Duncan's listed events. First, she initiated a complaint against an officer for remarks about a new rumor about her, made while he was off duty installing blinds for a civilian, a retired detective. IAB investigated and concluded any violation was unfounded because it was a private conversation between an off-duty officer and a recently retired officer. (9/29/99 IAB letter, City's Exhibit N.) Second, there was an IAB investigation of a lieutenant for a statement made to the effect that if this was Vietnam, Ms. Duncan would be "fragged" by now. IAB found the allegation against the lieutenant "not sustained." (10/20/98 IAB letter, City's Exhibit M.)
The most significant conduct occurred during Ms. Duncan's first assignment to Division 4. Her descriptions of the conduct of a Captain and co-workers could be considered to be of sufficient severity, frequency and hostility as to be actionable as a discriminatory work environment. There was no continuing pattern of the same types of events when she was in District 1 and she advanced her career by becoming a detective and received a promotion to sergeant.
The events occurring after 1984 are sporadic and disconnected with the exception of the rumors concerning improper relationships between the plaintiff and command officers. Rumors of heterosexual intimacy will not ordinarily be considered gender discrimination because both men and women are victimized. The argument here is that such rumors disadvantage women in the workplace when the implication is that the only way women can advance their careers is by granting sexual favors to the men empowered to make promotion decisions. The clearest evidence of rumors about Ms. Duncan and her superior officers are two anonymous letters, one addressed to the Mayor. Read in full context, those messages are political attacks on the leadership of the DPD and their abuse of authority in which their conduct with Ms. Duncan is but an example.
The truth or falsity of these rumors of impropriety cannot be determined on this record. The plaintiff has admitted frequent telephone calls, luncheon engagements and other contacts which could easily be interpreted as indications of romantic relationships. When there is a factual basis for a reasonable inference of impropriety as a result of a woman's voluntary conduct, it would not be reasonable to find that other workers' comments and suggestions about such a relationship were motivated by gender discrimination or a hostility toward women in the workplace. Moreover, there is no showing that these persistent rumors caused any adverse employment decisions or altered the terms and conditions of the plaintiff's employment. The rumors were about her special relationship with the men who had authority to advance her career and there is nothing to suggest that they were influenced negatively against the plaintiff. Notably, Heather Coogan testified that she too was subject to similar rumors during her long career with the DPD and she rose to the rank of Deputy Chief of Police, second in command of the department.
Ms. Duncan suggests that she did not advance to lieutenant because of some possible bias against her by unnamed persons but her evidence is wholly speculative on this point.
As the events complained of do not constitute one unlawful employment practice under Morgan, those events which occurred before June 18, 1997 are untimely. Because Ms. Duncan grouped the events into blocks consisting of several years, based on the record provided, she has only established a few listed events after June 18, 1997, none of which is actionable. For example, as previously discussed, the rumors about her and command officers were gender neutral. Further, the sergeant who made remarks about her at the Breakfast King Restaurant was investigated and disciplined and the subordinate officer who made the crude remark in June, 1999 was reprimanded.
The DPD had a policy prohibiting sexual harassment and an enforcement procedure for complaints. Ms. Duncan made informal complaints to supervisors and filed formal complaints with the Internal Affairs Bureau ("IAB"). Except for the first event listed by Ms. Duncan, each of the IAB complaints was investigated and disciplinary action was taken against proven offenders. The plaintiff complains that some investigations were inadequate. Illustratively, she says that her complaint against another officer for slapping her buttock was not investigated when she refused to permit photographing the bruises because she did not want the files to include such a picture. Photographing a physical injury is a standard procedure and Ms. Duncan's refusal prevented the IAB from obtaining corroborating evidence of the alleged conduct. That was not an unreasonable response. The plaintiff has failed to demonstrate that the disciplinary actions taken were not effective to prevent reoccurrences of misconduct by the offenders.
The plaintiff asserts that the City failed to provide adequate training to prevent violation of its policy. The evidence does not support that claim.
The City is not liable for the sporadic and individual workers' offensive misconduct under Faragher, supra and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
The plaintiff does not have a viable claim for a Fourteenth Amendment denial of equal protection against the City for the same reasons that defeat her Title VII claims, although, based on the two-year statute of limitations, only incidents on or after July 8, 1997 are timely.
In the Morgan opinion, the Court ruled that the defendant employer in a hostile sexual harassment case may raise the equitable defenses of laches, waiver and estoppel. As shown in Appendix A, Ms. Duncan does not remember many of the specifics of the events complained about over nearly twenty years of her employment. The City is unable to obtain evidence to rebut or contradict the plaintiff's testimony when she is unable to be specific about time, places and persons present. Some of the officers are now unavailable. It would be inequitable to present Ms. Duncan's accounts of these events to a jury when the defendant cannot produce evidence to challenge her testimony when that inability results from Ms. Duncan's unreasonable delay in filing her EEOC charges and this civil action.
David Michaud seeks dismissal of the Fourteenth Amendment claim against him on the same grounds as the City and on the additional claim that he is entitled to qualified immunity. The essential element of the case against Mr. Michaud is that during his tenure as Chief of Police he failed to take effective action to prevent the sexual harassment of Ms. Duncan and other women officers. The findings concerning the adequacy of the City's policy, as summarized in Appendix A, defeat that claim. The proffered evidence is insufficient to establish that David Michaud directly discriminated against Ms. Duncan or took any retaliatory action against her. Mr. Michaud's alleged actions regarding the rumors were gender neutral and directed to dispelling the rumors, only one of which involved Ms. Duncan. His action in transferring Ms. Duncan, with the concurrence of Deputy Chief Heather Coogan, to the Academy was for her safety and Ms. Duncan testified the only vacant position there at the time was a technician spot. Upon the foregoing, it is
ORDERED that the City's Motion for Summary Judgment and David Michaud's Motion for Summary Judgment are granted. The clerk will enter a judgment dismissing the plaintiff's claims against both defendants with an award of costs to the defendants.
APPENDIX A CHART SUMMARIZING THE PLAINTIFF'S ALLEGATIONS OF HARASSING EVENTS Duncan v. Manager, Dept. of Safety et al. Civil Action No. 99M1299
No. Assignment Allegations of Paraphrased Testimony Complaints and Comment Harassing Events and Exhibits Responses brand new veteran before Glamour Glamour Sanchez testified: Coogan testified:
1 District Four "Duncan was sexual- While still assigned a train- She told her TO No date given. (1979-1984) ly assaulted by a ing officer ("TO") and work- the next day, Assignment male police officer in ing late, she walked out the they went down with a TO was a police department back door and went to her to Internal at the begin- parking lot." car. A large officer who was Affairs and "I ning of her hiding in the back of the was basically employment. building came at her, started told to shut up." touching her, pulling on her clothes, pushing her to him. She was scared and finally got to her car. 2 District Four "Duncan received Anonymous letters from Based on Dun- No date given. (1979-1984) letters in her police within the department were can's testimony, Response department mail box put in her locker about how there was an appears to have indicating the au- they were going to do despi- investigation been thor was going to cable acts to her, then cut up about the letters reasonable. rape her, kill her, her body and throw the she was receiv- cut up her body and parts over Denver. ing. They found scatter the pieces one of the au- around the city." They were triggered by thors and fired hatred for police women. him. (No testi- mony cited on It was believed there were who initiated two different authors of two investigation.) different letters. One of the authors was discovered and fired. No one else was found. 3 District Four "Police officers, with "You would get in your po- Duncan did not No dates given. (1979-1984) whom Duncan was lice car, a policeman would report and it partnered, groped have his hand down on the was not the sub- One officer was her while on duty by seat, when you sit down, he ject of an IAB fired. The oth- placing their hands, would play with your rear investigation. It er officer who palm up, in her car end." is not clear why ceased his con- seat so that she one officer was duct is the same would sit on the The plaintiff named two fired. officer who was open hand." officers. One was fired. fired in No. 2. The other one stopped when she told him to stop. Those were the only times that happened to her. It was attempted many more times but she was smart enough so they would not get away with it. ". . . it happened with other people. It is endless. I can't remember everybody. It was a long time ago." She "was brand new" at the time. 4 District Four "A fellow officer In 1983 an officer pulled his No indication This occurred (1979-1984) deliberately exposed penis out of his pants; she this was when they were his penis to Duncan, told him it was inappropri- reported. going to have a making the com- ate; it made him mad; he choir practice, ment `isn't this started to tell people she had some people nice'." sex with him all the time. went for more beer, she and the officer were waiting for oth- er people to come. This does not appear to have oc- curred while the plaintiff was working. 5 District Four "Talk by male police Every male officer she No indication This is too (1979-1984) officers about their worked with would tell her this was indefinite to sex lives was about how his wife did not reported. constitute routine." understand him and he slept hostile and abu- on the couch; setting her up sive conduct. for a sexual rendezvous. Almost all of them did; she did not recall any names. She did not even "log it"; did not even take note of it because it was so common. This happened in District Four, early years (`79-'84), because she worked solo in District One. 6 District Four "Regular insinua- Her TO, who was married No indication No date given. (1979-1984) tions and comments but involved with a restau- this was about Duncan's sex rant manager, "made some reported. Only two com- life." remark that me and him ments were were involved sexually." cited. She said at roll call that was interesting "because I don't ever remember it." That The officer she took care of the problem. worked with is the same one An officer she worked with mentioned in had a roommate who said, in No. 13 No. front of others, that he found 16. a bra in his bed and assumed it was Duncan's. She gave This is duplica- him a smart remark back tive of No. 16. that embarrassed him and they traded barbs for the next year. After that, "actually, we got along pretty well." 7 District Four "Accused of having Does not know who made No IAB This is duplica- (1979-1984) sex with a sergeant accusation. complaint tive of No. 18. on the captain's made. desk." Occurred "throughout" the time when she was first in District Four. 8 District Four "An officer with The officer was married and No indication No date given. (1979-1984) whom Duncan was called a country music sta- this was partnered called a tion and had his girlfriend reported. This is the same radio station fre- announced "To Cindy out officer who was quently listened to there, your partner just fired in No. 3. by police officers wants you to know that he and asked a DJ to thinks you are wonderful, relay a [sexually and some other crap, and suggestive] message some sexual thing." "That to Duncan on the air he thinks you are beautiful" while they were and "wants to do it with riding together." you." "She [his girlfriend] is ". . . Duncan had laughing." reason to believe that other police ". . . all policemen are listen- officers heard the ing to the same country radio music station." announcement." She was a "boot" then. Boots were treated like dirt. 9 District Four "Duncan's com- The captain asked the ser- No indication This remark (1979-1984) manding officer [a geant if Duncan was giving this was was not made to captain] asked a him "head" when he recom- reported. her or in her sergeant who rec- mended her to be a TO. She presence. ommended her for a "doesn't know the context promotion if Duncan . . . because [she] only got it was `giving him second-hand. . . ." head'. [He] asked if Duncan was giving She asked the sergeant what all the sergeants if all of the sergeants went `head' when they and told the captain that concurred in the they believed she would be a recommendation. good TO. "So I was of the Duncan did not get impression that he had gone the promotion." to talk to [the captain], and that basically [the captain] said, Does she give you all head or what?" She was never allowed the opportuni- ty to be a TO because the class came and went. 10 District Four "Capt. — was She can only speak for No indication No dates given. (1979-1984) generally hostile to herself regarding what the this was females under his captain did that she felt was reported. This is highly command, made harassment. speculative as remarks about to an improper Duncan's breasts, He made remarks about her motive. and covered her breasts. He did not like calls on the street to police women. He "would check up on her always seem to cover my when he did not do calls." "This mean[t] that the same for male sometimes he would get officers under his there before I did, which is command." highly unusual." It was a way of intimidating her, you always have to have your hat on, do everything perfect. She was not new then, no longer a recruit. Does not know whether he covered recruits' calls. She surmised that he did not do this to male officers when a male officer asked her whether the captain always covered her calls. 11 District Four "Officer —, who The officer was at her level. No indication No date given (1979-1984) believed women did He did not believe women this was for the incident not belong on the belonged on the job. He got reported. or the officer's job, got on the police on the air and said he would death. radio and announced refuse to cover me when on the air that he they sent me to a bar fight would not cover solo. Duncan when she got called to a bar He is dead now. fight and was work- ing solo." 12 District Four "A dildo was put in District Four. No indication The male offi- (1979-1984) the mailbox of an- this was cer is the same other female police A male officer showed reported. man who was officer, Officer —." Duncan the dildo and told fired in No. 2. her how much fun he was going to have tormenting people with it. He apparent- ly put the dildo in the mail- box. The female officer be- lieved that the male officer did it but accused Duncan because she thought Duncan was involved and Duncan was a clerk. 13 District Four "Comments and/or She was accused of having No indication One officer is (1979-1984) allegations that an affair "with anyone I had this was the same one Duncan was having as a partner." When asked reported. mentioned in sexual relationships to give a list, Duncan identi- No. 6 No. 16. with her [male] fied —, a detective in the partners, — and theft bureau (`89-'91), — —." in `81 or `82, and — in `83. 14 District Four "While on a District Four. No indication This was an (1979-1984) burglary call in a She named the officer. He this was effective self- dark basement, a put his arms around her and reported. help remedy. fellow patrol officer kissed her on the face. He put his arms around laughed and said it was no Duncan and kissed big deal. "And we worked her." that out." "It was wrong, and I didn't appreciate it, and it didn't happen any- more. He just had to be told." 15 District Four "Another female of- The woman referred to as a According to Duncan does (1979-1984) ficer was referred to split tail told Duncan that Duncan's testi- not remember as a `split tail' over she "reported it." mony, this was if this was in the police radio." "reported" by District Four or She does not remember if the female One. this was in District Four or officer. One. There is no in- formation about a response. 16 District Four "Duncan's partner's The pages cited do not sup- No indication No date given. (1979-1984) roommate (also a port this allegation. If the this was police officer) com- plaintiff was referring to reported. This is duplica- mented that he had pages 238-239, this reference tive of No. 6. found a bra in his is duplicative of No. 6 above. bed and assumed it The same was hers, implying officer is men- that she was having tioned in No. 6 a sexual relationship No. 13. with her partner —." 17 District Four "A particular lieu- It was the lieutenant for Not reported. No date given. (1979-1984) tenant would call fe- whom she worked. males in after dark The cited testi- because he did not "You don't report these mony does not want policewomen things. Nobody thought support the on the street at them to be a problem or a allegation that night." crime. It is just what they this is sexual did." harassment. It appears to be a protective measure. 18 District Four "Was accused of This is duplicative of No. 7. No IAB com- This is duplica- (1979-1984) having sex with a plaint made. tive of No. 7. sergeant on the captain's desk." 19 District Four "Duncan was forced Duncan called the captain in No indication No date given. (1979-1984) to ask for a transfer 1 about moving to 1 mid- this was report- Presumably this from District 4 to period, because of harass- ed other than to was at or near District 1 in mid- ment by the captain in 4. the captain in 1. the time of period because of transfer. The the harassment of remedy re- [the captain in quested was District 4]." granted. 20 District One "Throughout her District One. No indication Duncan's testi- (1984-1988) tenure at District this was mony is incon- 1, Duncan was ". . . when I got the next car reported. sistent; she ostracized by fellow up, it caused a lot of resent- said she was officers and did not ment with the men in that ostracized and receive cover from sector. They wouldn't take did not receive fellow officers." me to coffee, they wouldn't cover, and then cover my calls." "I basically said she had worked a solo car. . ." friends who would cover The supervisor put me on her. the car instead of taking a vote to see whom they want- ed, which would have been another officer, so they os- tracized me. "They didn't want a woman there." I got along fine without them. I was used to work- ing solo. "That was what I wanted, because I didn't want to have a full-time partner." "I had a lot of friends who would cover me and go to lunch." "I had to operate in not as safe a level of police work simply because I didn't have backing." "I never asked for cover." That entire sector would not cover her. "Unless I abso- lutely called it out and said I had to have cover." 21 District One "A detective walked District One. No IAB com- This was an (1984-1988) into a closet behind plaint was made. isolated Duncan, put arms A named detective followed incident. around her, pushed her into a closet, "put his her against the arms like that," "put me up shelves and tried to against he shelves," and kiss her on the tried to kiss me. mouth." 22 District One "She was. . . more District One. No indication The testimony (1984-1988) often assigned to be this was does not sup- the clerk for her The supervisor "was known reported. port the allega- shift than male not to like women." "On tion that she officers." numerous occasions," she was assigned would be in a car and then more than male be clerk. "[I]t started to be officers. In a pattern. . . ." "[T]hey put some respects, me on a scout car and I got it is inconsistent moved off that." with her testi- mony in No. 20, where she says that the same supervisor gave her the next car up, which caused her to be ostracized. 23 Detectives/ "Comments and/or In the theft bureau there No IAB com- The cited testi- Crimes allegations that were rumors she was having plaint was made. mony does not Against Duncan was having an affair with a named support the Property sexual relationships detective. allegation (1988-1991) with two fellow concerning the detectives, — and '89-'91 time frame. other detective. —." 24 Detectives/ "While working one Although the plaintiff refer- She did not This is an Crimes Sunday, a detective enced pages 275-275, it is report it. isolated Against grabbed Duncan and assumed she meant pages incident. Property tried to kiss her on 275-276. (1988-1991) the mouth." One Sunday a detective grabbed her body and kissed her. She does not know if it was on her mouth. He is now retired. The theft bureau. 25 Detectives/ "2-3 suggestive She was in the theft bureau. No IAB com- There is no Crimes notes left on her plaint made. indication that Against desk by a fellow A named detective left two he repeated this Property detective." or three notes on her desk conduct after (1988-1991) saying he would like to go her request to out with her, "I would like stop. this, I would like that." She confronted him about it and asked him not to do that. 26 Detectives/ "Duncan asked for A sergeant, now retired in No indication There is no Crimes an assignment in Florida, wanted her to work this was indication that Against burglaries and was for him. He told Duncan reported. this was an Property requested for the that the lieutenant said he adverse (1988-1991) assignment by a ser- would not allow Duncan to employment geant, the lieutenant transfer into burglaries action. assigned to burgla- because she was a woman. ries refused to allow her to transfer into She was in theft; in `91. the unit because she was a woman." The lieutenant is dead. 27 Detective/ "Regular remarks She was in the assault No indication The offensive Crimes by a lieutenant of a bureau. this was conduct stopped Against sexually suggestive reported. when she spoke Persons nature and unwant- The named lieutenant made to him. This (1991-1995) ed physical contact remarks such as "You look was effective by him." so nice today." "What are self-help. you doing tonight? Do you want to have a drink?" "He would get close to you, brush up against you in the eleva- tors." She got irritated at him, said something. That day or the next day he apolo- gized and said he had been out of line and did not know she was married. 28 Detective/ "Suggestive com- A named captain asked No indication These remarks Crimes ments by her com- Duncan if she could get this was do not appear Against manding officer, him a date with Duncan's reported. to be hostile or Persons that aside from her girlfriend. abusive. (1991-1995) abilities, Duncan `brought a lot to the She was under his command table' and other in- at the assault bureau. appropriate remarks by the same com- When she was going to do She did not manding officer." the sergeants test the cap- report this tain said "It is not just your incident. abilities, as a police officer, that would make you such a good sergeant, because you really do bring a lot to the table." "And to me that was full of quite a bit of innuen- do." "I assumed. . . it meant. . . my personal phys- ical appearance." "[H]e was sitting very close to me, and he leaned over, and he said it." 29 Detective/ "Hit on the buttocks She tapped an officer on the IAB Complaint The refusal to Crimes by an officer so hard top of his left shoulder to ask filed, Duncan cooperate in the Against that it left a bruise." him to stand and allow her to would not allow investigation Persons pass. He said "Now, what pictures of the ended it. A (1991-1995) would you do if I touched alleged bruise to photograph was you on your backside like be taken, no a routine that?" And she said that "I independent procedure. guess similar circumstances, source to sup- yeah, you could do the same port complaint thing." Then he slapped her so complaint on her rear end. She could could not be sus- not sit; it was very painful. tained. No dis- "It was really kind of red." ciplinary action Her girlfriend saw it. taken but com- plaint made part of the file on the accused officer. (Letter to Duncan dated 12/28/93, City's Exhibit D.) The officer did not engage in similar conduct again. 30 Detective/ "Accused of having She was on medical leave No indication This could not Crimes sex with Dep. Chief from an accident when the this was be considered a Against — on his desk." Deputy Chief was discovered reported. hostile or abu- Persons in a sex act at headquarters sive act. (1991-1995) with a woman. Her girl- friend called Duncan and told her that "People are saying that it might even be you by the way they described her." 31 Detective/ "Was pressured by a This duplicates No. 28. No indication This is partly Crimes superior officer to this was duplicative of Against get him a date with The captain "pushed it a reported. No. 28 and Persons a woman Duncan number of times: Did you could not be (1991-1995) knew." ever contact your considered abu- girlfriend?" sive or hostile. 32 Detective/ "A superior officer The "she owed him" was No indication This is partly Crimes told her `she owed a favor he wanted from this was duplicative of Against him' after he sup- Duncan, namely, to get reported. No. 28 and No. Persons posedly did her a him a date with her 31. (1991-1995) favor." girlfriend. 33 Internal "An officer who A detective said this. She No indication This could not Affairs (1995- came into a unit to was wrapping presents, ties, this was be considered 1996) see another detec- for her husband and her reported. hostile or tive remarked to father. abusive. Duncan as she wrapped a valen- tine's gift for her husband, "I under- stand your valen- tine's list is longer than your Christmas list" 34 Internal "Allegations by offi- "[T]he guys in the info desk No indication This is an Affairs cers manning the said they caught [a superior] this was isolated (1995-1996) front desk that they touching my breasts, okay? reported. incident. saw [a superior] That was a new rumor that touching Duncan's got started. That never breasts through the occurred." "I don't remem- cameras on the out- ber" who told me that's what side of the head- was being said. quarters building." 35 Internal "Chief Michaud Referenced pages (pp. 957- No indication There is noth- Affairs caused her ranking 958) were not provided by this was ing to indicate (1995-1996) on the sergeant's the plaintiff. reported. that this was promotion list to be done with a lowered." Plaintiff's Exhibit 26 is a discriminatory letter dated 4/5/96 from intent or a Michaud to the Civil Service hostile reason. Commission outlining the It did not affect events which led up to Duncan's Duncan's change in ranks promotion to with another female officer, sergeant. moving Duncan up to num- ber 27 from 28, stating he believed the change to move her up from her original rank was inappropriate, and requesting that the Ser- geant's Eligibility Register be revised and returned to its original rank order. 36 Internal "Duncan was not She was in internal affairs. No indication The cited depo- Affairs (1995- allowed to use a de- She was brand new. The this was sition testimony 1996) partment vehicle other two detectives were reported. does not sup- when she was the veterans. port the allega- on-call detective un- tion that she less she made a for- She was treated "differently was treated mal written request than the other two detec- differently to do so, whereas tives." "When the detec- because she was the male detectives tives who were supposed to a woman. In- were allowed to use be on call with the car, when stead, she testi- the car at their own they had the car, they didn't fies that she discretion." have to ask to have the car was between this month and this and the month. . . but. . . [when] it detectives was my time, I had to make received more a formal letter and request favorable it." treatment. 37 Internal "Duncan's sergeant The same cited deposition No indication Again, the tone Affairs (1995- monitored her com- testimony is used to support this was and content of 1996) ings and goings in No. 36 No. 37. reported. the testimony the unit and did not supports the monitor the male She was brand new in conclusion that detectives." internal affairs. she was treated differently be- The supervisor monitored cause she was her activity and treated her new. She did differently "than the other not state that two detectives." For exam- she was treated ple, "He let both detectives differently in IA go away at that time because she was when we had a lot of hear- a woman. (See ings and everything else. I No. 36.) was brand-new. I had been up there maybe two weeks. He let both of the veteran detectives go. . . ." 38 District Four "Allegations circu- Hines testified that com- Duncan initiated No date given. (1996-2000) lated that another ments about Duncan were an IAB com- Although un- sergeant was trans- called "Cindygate." That plaint about ru- clear, presum- ferred from District she was having an affair with mors circulating ably this 4 to make room for the chief and that's the rea- and an investi- occurred when Duncan implying son why she was transferred gation was con- Duncan trans- that because she to District 4 out of IAB. ducted. No vio- ferred to was having an affair ". . . it was a forced transfer lation was found. District 4. with [a chief] she with Sergeant Pinder to (See No. 55.) got to choose where IAB, because Sergeant she wanted to go." Duncan came out on the street when she made sergeant." 39 District Four "After Duncan was According to Hines, before See No. 55 Hines' testimo- (1996-2000) assigned to District Duncan was assigned out at discussing ny related to 4 and before she District 4, there were com- Duncan's IAB Duncan started her assign- ments about her relationship complaint and was assigned ment, allegations with Leary, Michaud, and its investigation. out at District circulated that she Sanchez. As to Sanchez, 4. was having affairs there were comments that with command offi- Duncan received special cers and would be treatment and promotions The cited depo- able to work any and transfers that other sition testimony detail she chose." people had not received. does not identi- fy who "he" is. Duncan testified: "He thought that Andrews should stay on the morning shift, and he would move me to day shift" so that he could monitor the situation be- cause he worked days and could make sure her environ- ment was better. She asked him not to because "it will just be more special treatment." He said that, before she See IAB com- The rumors came out, Lt. Leone asked plaint against were not him not to bring Duncan Leone refer- discriminatory "here" because "She's a enced in No. 42. because they pipeline to the administra- affected male tion because she's friends supervisors with them. She will tell unfavorably as them everything she don't well as like that goes on here, and Duncan. I'll bet you within three months, shell be voting any days she wants and working days." 40 District Four "Duncan was the Sanchez testified: Exhibits See No. 55 These criticisms (1996-2000) subject of two anon- 37 38 were two anonymous discussing were of the ymous letters circu- letters that floated around Duncan's IAB management of lated throughout the more than department wide. complaint and the DPD and department, which [He has seen several other its investigation. could not rea- alleged, among anonymous letters concern- sonably be con- other things, that ing Duncan. There was a sidered hostile Duncan received letter that referred to or abusive of choice assignments "Cindygate" and Duncan. because of her "concubine," and alleged a relationship with sexual relationship between Sanchez." Duncan and Leary. This was sometime between 1995- 1998. Michaud was con- cerned with Duncan's per- sonal safety.] Exhibits 6 7 are the al- leged anonymous letters: Exhibit 6 contains the date May 23, 1997, so the letter must have been written after that date. Duncan is a small part of the letter that is addressed to "Dear Mr. Mayor." Although Duncan is one of many names in the letter, it is an attack on the "corrupt police administra- tion" and not directed at Duncan. Exhibit 7 contains a few dates, the most recent is March 1999. It also refer- ences Duncan's transfer to the academy and then to the photo radar unit. Although the bulk of the letter ad- dresses Sanchez's relation- ship with Duncan, it is directed toward Sanchez and his alleged improper relationships and abuse of authority. 41 District Four "Duncan was the There were other letters in See No. 55 The reference (1996-2000) subject of another addition to Exhibits 37 38 discussing to a threat to anonymous letter, (plaintiff's Exhibits 6 7). Duncan's IAB Duncan and which accused her There was a letter that said complaint and Leary is an of having an affair they were going to send one its investigation. isolated event. with Dep. Chief to her house, in hopes that Leary. The author her husband, a cop; would threatened to send a get a gun and kill her and similar letter to Leary. The Chief was Duncan's home in concerned about it. This an effort to get was prior to Exhibits 37 Duncan's husband 38. to get a gun and shoot them both." 42 District Four "Lt. Leone told oth- "I heard sergeants in the Duncan initiated The statements (1996-2000) er officers he was sergeants' office talk about an IAB com- specifically ref- going to follow Sgt. how Leon[e] had bragged plaint against erenced in the Duncan and the that he was going to follow Lt. Leone. Her 12/11/97 IAB Chiefs to see if he us [Sanchez, Leary or issues with him letter include could catch them in Michaud] and try to catch us were that he rumors about a compromising coming out of each other's was spreading Duncan, position." homes. That was when I rumors about "Cindy-gate." was in District 4." her and Leone's alleged Michaud, Leary statement that Rumors about her and and Sanchez, he was going to Michaud were called his use of the drive by her Cindygate. Cindygate term, residence and his saying that that Joe he was going to Duncan had drive by her observed Leone house to catch doing so, and her with one of rumors of her the chiefs, and walking out of his telling Sanchez's house Sandoval not to following the let her come to arrest of a sex- District 4. (Nos. ual assault sus- 39, 42, 43). pect. They are not evidence of IAB investigat- gender hostility ed and found no toward the corroboration plaintiff. for statements contained in Duncan's com- plaint. The complaint against Leone was determined "Unfounded." (12/11/97 IAB letter, City's Exhibit G.) Duncan is not aware of any further rumors spread by Leone. 43 District Four "Lt. Leone was There is reference made to See IAB com- Same comment (1996-2000) seen by Duncan's District 4. plaint against as No. 42. husband cruising Leone refer- slowly by their Joe Duncan testified: enced in No. 42. home." He does not know what Leone looks like. "I saw somebody that fit his description drive by my house" once. 44 District Four "Lt. repeatedly While explaining about Duncan com- The complaint (1996-2000) use the term `woo- handling internal affairs plained and IAB resulted in lies' to describe complaints, "Lt. starts investigated the reasonable female genitalia dur- telling me about woolies." lieutenant's remedial ing a conversation He repeated it at least 12 February 1997 action. with Duncan in his times and was talking about actions. He was office." a woman's genital area. given a written reprimand and Duncan's testimony about ordered to at- the lieutenant is made in the tend a Remedial context of Duncan explaining Sexual Harass- to another lieutenant why ment Class. she would not complain (6/4/97 IAB about a sergeant's actions of letter, City's walking out on her role call, Exhibit F.) The talking down to her in front lieutenant was of people, etc. "I'm going to also transferred. go and tell [the lieutenant] about subtle things that this Duncan never man obviously would never worked with or understand?" had any interac- tions with this lieutenant again. 45 District Four "Lt. confronted The lieutenant asked Duncan This was part of This cannot be (1996-2000) Duncan during the to come into his office and IAB investiga- considered hos- pendency of an ". . . I felt very badly be- tion and disci- tile or offensive internal affairs in- cause I actually did like [this plinary action. conduct. vestigation into the lieutenant], and I felt bad (See No. 44.) `woolies' comments how all this thing went and accused her of down. . . ." He asked her stabbing him in the "Why did you do this?" "I back." liked you." "I thought you were an excellent ser- geant. . . ." "Why would you stab me in the back?" She said, among other things, "I didn't know it was going to all end up this way. Originally, it was because of Sgt. —, I said, and it just turned out this way, and that's all I can tell you." 46 District Four "Over a two-year Pre-disciplinary meeting IAB investiga- Appropriate (1996-2000) period from 1997 transcript: The transcript tion and the ser- remedial action through 1998, Sgt. provides that disciplinary geant was disci- was taken. — regularly dis- action was recommended plined with a cussed Duncan's sex "based upon the following suspension of 60 life and speculated information and this is not days and or- about her various intended to be a complete dered to attend partners in a public summary of the case file; Remedial Train- restaurant in front For a period of time between ing on Sexual of other command January of 1997 and April of Harassment officers, including 1998, Sergeant — patron- issues. sergeants and lieu- ized the Breakfast King (City's Exhibits tenants, and within Restaurant. . . . Over this H, I J; plain- earshot of other period. . . he engaged in tiff's Exhibit 9.) restaurant several conversations with patrons." Mr. —, the night shift Other than a manager, as well as fellow letter the ser- District Four sergeants. geant's lawyers These discussions focused on wrote to the Sergeant Cynthia Duncan mayor about and included a number of Duncan, since specific sexual references as April 1998, she well as. . . adverse com- is not aware of ments on her job capabili- any statements ties. . . . [S]ome of these con- he made about versations were heard by her. The other restaurant patrons and sergeant was employees." transferred to District 2 in According to the transcript, April 1998. the sergeant admitted his conduct was reprehensible, disgusting, mean-spirited, and immature. 47 District Four "Sgt. — criticized This is part of No. 46 and This was investi- See No. 46. (1996-2000) her abilities as a references the same gated and the command officer to transcript. sergeant was both fellow ser- disciplined. geants and at least (See No. 46.) one civilian." 48 District Four "Sgt. — was disre- The initial complaint she Duncan testified See Nos. 46 (1996-2000) spectful and under- made about him was more that she com- 47. mined Duncan's about him being rude, dis- plained about authority, walked courteous and condescending his rude and dis- out of roll calls she as opposed to comments of a courteous behav- was conducting." sexual nature. ior as well as his comments of a The second complaint sexual nature. against this sergeant was Presumably this "when all the sexual things was part of the occurred." His remarks got investigation worse after he was trans- referenced in ferred back to the morning No. 46 No. 47. shift; his remarks did not become the focus of the complaint until the second complaint. 49 District Four "A lieutenant in AIB The referenced deposition Date unknown. (1996-2000) initiated a complaint testimony is not included in Even assuming against Duncan af- the plaintiff's exhibits. this allegation is ter Duncan asked true, this con- that he be removed duct does not from the [ser- establish geant's] investiga- discrimination tion because he against Duncan had been rude and based on her disrespectful." sex. 50 District Four "Ostracized by Two named sergeants No indication This is a conse- (1996-2000) fellow sergeants "wouldn't sit with me or any- this was quence of the who wanted to get thing when — came back to reported. conduct of the along with — be- the morning shift and I was sergeant who cause he was the on Detail 4. They wouldn't was appropri- senior sergeant on sit with me, but then when ately disci- the detail." he wasn't working on a day plined. (See off, they would come and sit Nos. 46-48.) with me." 51 District Four "In June 1999, a During a discussion about Duncan initiated No date given (1996-2000) subordinate officer, how many points they got in IAB complaint but this oc- [man], made a crude their ratings, the officer against this offi- curred during a remark to Duncan commented: "when I cer. They both Rockies game while both were on [Duncan] said I have gone received written they were duty, implying everywhere and done every- reprimands. working. This Duncan slept thing [but had a 5.2 rating], is an isolated around." he said, Yes, that is what I random heard. And he started comment. laughing." 52 District Four "When Duncan filed Duncan said: "Make no mis- This was investi- This discipline (1996-2000) an internal affairs take, I said, if you say one gated and both was not gender complaint against more thing and I will fucking received repri- motivated. Officer —, she too file on you" and raised her mands. See No. was disciplined for index finger. She could not 51. using a cuss word in believe she might be filed on response to [his] im- for losing her temper. proper comment." She got a written reprimand for using profanity and he got a reprimand for what they considered to be inap- propriate innuendo. 53 District Four "Magazine article Testimony supports state- IAB investigat- No date given, (1996-2000) left in Duncan's in- ment. ed statement but the article teroffice mailbox made by Lt. appears in the with a cartoon of a Plaintiff's Exhibit 12 is arti- Bown, when he June 1998 naked woman in a cle: "9 reasons why men was shown the maga- bathtub and sub- envy you." It is contained in article by zine. It could headings in the arti- a magazine, writ- Duncan. Bown not reasonably cle such as `Orgasms ten by a man and states said it was not a be considered That Don't Cause "Men are Jealous of Wom- "female thing" hostile and abu- Flood Damage' and en." The subheadings cited but a "Cindy sive to women. `Breasts that by Duncan are just two of Duncan thing." Work'." them, but they were the ones Duncan testified that she Lt. Bown re- found offensive. Other ported the inci- headlines include "Pasta dent and he was Therapy," "Great Bathroom exonerated. Escapes," "Makeup Magic," "Cheerleading squads," (10/7/98 IAB "Public displays of expres- letter referenc- sion," and "More life ing 7/98 incident, choices." City's Exhibit L.) Briefly summarized, the article is about "[t]he female habits, pleasures and treasures that men secretly covet." 54 District Four "Duncan's work was Duncan had her papers — her No testimony Although no (1996-2000) undermined, paper- "job history" — in a notebook that this was date was given, work was removed and showed it to some ser- reported. she testified, in from her desk, her geants who had not taken the referenced application for the the test and were curious pages, that she lieutenant's exam, about the process. "Some- took the test which had been left body got in my car and "[m]aybe two in a patrol car, was threw my job history, which years ago," removed from the was the only copy I had, and which would car and found in threw it into Lakewood." A have been about Lakewood by a Lakewood man found them. November 1997. citizen." It is undue No supporting testimony speculation that was provided in the cited this action was pages for her allegation that done by a male her work was undermined or police officer or that paperwork was removed that it was gen- from her desk. der motivated. 55 District Four "Accusations that The same testimony of Hines In January 1996, No date given (1996-2000) she was having af- that was used to support No. Duncan initiated but refers to fairs with Chief 38 is used to support allega- an IAB com- the reason for Michaud, Dep. Chief tion No. 55. Hines testified plaint about ru- Duncan's trans- Sanchez and Dep. that comments about Duncan mors, alleging fer to District 4 Chief Leary with were referred to as Detective Anne out of IAB. the situation being "Cindygate," and there were Woods initiated dubbed `Cindygate'." "different things" about them. IAB in- Duncan's relationship with vestigated, de- the chief and handling of a termined that sex assault in front of the rumor resulted chief's home. from a conversa- tion between Woods and Duncan, and found the case "Not Sustained." (3/28/96 letter, plaintiff's Exhib- it 17; 3/19/96 IAB letter, City's Exhibit E.) Duncan testified: Cindygate Duncan is un- No date given. was about her and Michaud, aware of any Sanchez, and Leary. "I was further rumors Duncan's testi- told that it was about being circulated mony estab- Leon[e] saying that he was thereafter by lishes the ru- going to topple this adminis- Woods. mors are gen- tration with the information der neutral. he has and he said, And my Leone was in- They were di- information I've entitled vestigated. (See rected at "top- Cindygate. And he was im- No. 42.) pling" the plying that I was having sex administration with all three chiefs." "Ap- and not to her parently Leon[e] dubbed it based on her Cindygate." gender. 56 District Four "Chief Michaud Cindygate Duncan initiated No date given. (1996-2000) went to roll call at "was the word that described a complaint District 6, said he the fact that Chief Michaud's about rumors This is the same was there to dispel administration was going to and IAB con- subject matter rumors and an- fall because of this Cindy- ducted an inves- as No. 55. nounced that, `he gate thing, because of this tigation. (See was not having an sexual liaison." No. 55.) Michaud's con- affair with Cindy duct could not Duncan'." There were rumors that Leone was also reasonably be Michaud was involved with investigated. considered any- Duncan, living outside the (See No. 42.) thing other city and getting a divorce all than an effort going on at the same time. to stop the "He [Michaud] felt that this rumors. rumor situation was out of control, and he wanted to stop it. He felt that if he went to some of the roll calls in District 6 [the largest dis- trict]. . . that he, maybe, could nip this and make it go away." Michaud told Sanchez that Michaud was going to try and dispel "each of these ru- mors. . . the divorce, living out of the city, Cindygate, that sort of thing." Michaud told Sanchez "he discussed all of these issues with the officers at roll call," includ- ing telling the officers he was not having an affair with Duncan. Michaud No date given. told her he went to a roll call and announced he was not having an affair with Dun- can. He indicated Leone was connected to the term Cindygate. 57 District Four "On two occasions When Duncan was a ser- No indication It is highly (1996-2000) when Duncan was geant about `98, there were this was speculative that covering dangerous two examples of when she reported. this was gender calls, she requested did not get cover. One in- motivated. cover and failed to volved a fight between two get it until dispatch men and a woman. She assigned a cover called for cover, did not get car." cover until she called again and "they ordered somebody to get there." The other time was when she went to a domestic and her cover did not come for 15 minutes. 58 District Four "Duncan was trans- Heather Coogan "offered me No indication No date given (1996-2000) ferred to the Police to go to the academy." I did this was but on pages 2- Academy against not want to go, it was an reported. 3 of her her wishes to a non- hour away from my house, Response brief, sergeant position." winter was coming and I had Duncan states, a sports car, I only have five without sup- minutes to District 4. I never porting refer- wanted to go there. ence, that she was transferred to the Police She left the academy to go to Academy in traffic because: she had a August 1999, non-sergeant position at the assigned to the academy, the only vacant po- photo radar sition available was a techni- unit in traffic in cian spot. "But due to the December 1999, circumstances, they sent me and went on out there [academy]." When medical leave in the photo radar program June 2000. came in they had to put a sergeant in there, "I was the There is no only sergeant in a non- evidence to sergeant position," Dep. support Chief Abrams called me, said Duncan's per- I did not have to go there, ception that this but he would appreciate me was an adverse taking on the program. "So action. that is what I did." She went on medical leave from traffic. The reason was because: "there was an incident when I was working a Rockies game. . . ."