1 Lawrence W. Williamson, Jr.
2 Shores, Williamson & Ohaebosim, LLC Attorneys and Counselors at Law
3 1400 EPIC Center 301 N. Main Street
4 Wichita, Kansas 67202 Phone: (316) 261-5400
5 Fax: (316) 261-5404
6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE DISTRICT OF KANSAS

10

11 GRETA SEMSROTH, KIM WAREHIME, ) Case No.:__ 04-1245-MLB

12

SARA VOYLES, and HEATHER PLUSH on ) behalf of themselves and all others similarly ) FIRST AMENDED COMPLAINT-CLASS

13 situated,

) ACTION FOR CIVIL RIGHTS ) VIOLATIONS

)

14

Plaintiffs,

)

)

15

vs.

)

)

16 CITY OF WICHITA, and CHIEF NORMAN)

WILLIAMS individually and in his official)

17 capacity,

)

)

18

Defendants.

)

)

19

)

20

21

FIRST AMENDED CLASS ACTION COMPLAINT

22

COMES NOW, Greta Semsroth, Kim Warehime, Sara Voyles, and Heather Plush,

23 Plaintiffs, individually and on behalf of all similarly situated individuals and in support of 24 their causes of action against Defendants, states and alleges as follows:

25

26

FIRST AMENDED CLASS ACTION COMPLAINT

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1

I. PRELIMINARY STATEMENT

2

1.

Plaintiffs file this Amended Complaint against defendants individually and on

3 behalf of all females similarly situated, seeking relief from systematic unlawful employment

4 practices by The City of Wichita, and by Police Chief Norman Williams. The females of

5 this class seek a solution that will make the Defendants treat all of its employees, whether

6 men or women, black or white, old or young, fairly and equitably. The women do not seek

7 special treatment: only lawful treatment.

8

2.

After initially filing this action, female officers have been retaliated against

9 and one Lieutenant has even stated that the “bitches [female plaintiffs] need to learn how to

10 get along.”

11

3. Wichita Police Department is made up of two categories of officers. There are

12 commissioned officers and non-commissioned officers. Commissioned officers are those

13 individuals who complete the training academy and possess full law enforcement powers.

14 Among the commissioned positions are, in ascending order, recruit officer, patrol officer,

15 detective, sergeant, lieutenant, captain, deputy chief, and chief. In over 130 years, the

16 Wichita Police Department has never employed a female police Chief.

17
4.

The plaintiffs and the Class have been treated differently than similarly

18
situated male co-workers. The plaintiffs and the Class have been denied, based on their sex,

19
desirable job assignments, promotional opportunities, supervisory positions, training, equal
20
pay, bonuses and other benefits of employment. Defendant has deterred female officers from
21
seeking promotions, supervisory positions, and desirable job assignments; failed to equally
22
recognize female officers for merit based awards; failed to effectively enforce policies
23
prohibiting sex discrimination; and retaliated against female officers who have protested
24
defendants’ discriminatory policies, pattern, and/or practices.
25

26

FIRST AMENDED CLASS ACTION COMPLAINT

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1

5.

Supervisors of the Wichita Police Department have admitted that females

2 have a difficult time at the Department, yet defendants have consistently ignored complaints

3 about these unlawful work conditions, inadequately investigated female officers’ complaints,

4 and failed to implement steps that would eliminate these unlawful working conditions. By

5 ignoring the complaints of these female officers, the officers become weary, unconfident, and

6 afraid to speak up for themselves and deters the females from initiating complaints out of

7 fear of being retaliated against.

8

6.

While the Wichita Police Department has an anti-discrimination policy, and

9 many of its employees honor the rights of the female co-workers, far too many of its 10 supervisory employees are not effectively policed, are rarely disciplined for violating the 11 rights of the female employees, and ignore defendant’s stated policies and make employment 12 decisions disadvantageous to female employees. Supervisors, as high in rank as Captain, 13 have verbally stated that the policies are only intended to be guidelines and are flexible. 14 When supervisors and co-workers are disciplined for violating the rights of the female 15 employees, the discipline is usually too lenient to deter future illegal conduct. It is common 16 knowledge at the City of Wichita Police Department that if female officers complain about
17
supervisor or co-worker misconduct, they may be ostracized and denied meaningful future
18
opportunities at the City of Wichita Police Department. Female employees, rather than the
19
perpetrators, frequently are punished by being reassigned to jobs and places that under-utilize
20
their skills and make future advancement even more difficult.
21

22

23

24

25

26

FIRST AMENDED CLASS ACTION COMPLAINT

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1

7.

Male co-workers and supervisors frequently make verbally harassing

2 comments about female officers who wear make up, as well as female victims of crimes with

3 derogatory terms such as “whore.” Female officers are also harassed by explicit and crude

4 remarks about the female body. Such harassment is at times paired with the male co-workers

5 and supervisors grabbing the male anatomy. Female officers are also labeled as “bitches.”

6 These actions have fostered a hostile work environment. Male officers have bragged about

7 raping women in the presence of female officers while supervisors write off such behavior as

8 guys just trying to sexually arouse female officers.

9

8.

From the day that female officers enter into the police training academy, they

10 are held to higher standards than that of their male counterparts. Females constantly have to

11 “prove” themselves to be equal to all of the males who consider female officers “just a girl.”

12 Female officers are forced to go above and beyond the requirements of similarly situated

13 male officers. Female officers are often directed to take “safe” posts during calls which often

14 station the female officers away from where any suspected criminal activity may be taking

15 place. By doing so, the male officers are essentially implying that the female officers are not

16 capable of handling a situation where the female officer may be called upon to ensure the

17
safety of male officers.

18
9.

In failing to adequately protect the rights of its female officers, and in

19
permitting an environment in which their self-esteem and value are questioned, defendants

20
have injured not only these female employees, but their families and loved ones as well;

21
dirtied the dignity of these women; impacted the self-worth of these women; have denied

22
their spouses, loved ones, and children income due these family units; and, in doing so, have

23
impaired their emotional relationships with their spouses, loved ones, and children.

24
II. JURISDICTION AND VENUE

25
10.

Jurisdiction of this Court is invoked, for purposes of plaintiffs’ Title VII and

26
42 U.S.C. §§ 1981 and 1983 claims pursuant to 42 U.S.C. § 2000e et seq and 28 U.S.C.

FIRST AMENDED CLASS ACTION COMPLAINT

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1 §§ 1331, 1343 respectively. Jurisdiction is invoked over plaintiffs’ equal pay claims

2 pursuant to 29 U.S.C.S. § 206 et seq.

3

11.

Jurisdiction over plaintiff’s state law claims is proper under 28 U.S.C. § 1367.

4 Venue is proper in this court under 28 U.S.C. § 1391(b). Most of the plaintiffs have received

5 notice of their right to sue letter from the EEOC and this action is filed well within the ninety

6 day limitation period of receiving such notice. The single filing rule should be invoked by

7 the court.

8

III. PARTIES

9

12.

Plaintiffs are females who have suffered discriminatory employment policies

10 and practices at the hands of the defendants because of their gender. The plaintiffs comprise

11 of commissioned officers. They are qualified persons who have been denied the opportunity

12 for promotion, who have been injured because of unequal job assignments, who have been

13 subjected to a hostile work environment, and/or who have been retaliated against because of

14 defendants’ policies and practices of racial discrimination.

15

13.

Plaintiff Greta Semsroth resides in Sedgwick County Kansas. Ms. Semsroth

16 is a sworn officer and an employee of Defendant City.

17
14.

Plaintiff Sarah Voyles resides in Sedgwick County Kansas. Ms. Voyles is a

18
commissioned officer and an employee of Defendant City.

19
15.

Plaintiff Kimberly Warehime resides in Sedgwick County Kansas. Ms.

20
Warehime is a commissioned officer and an employee of Defendant City.

21
16.

Plaintiff Heather Plush resides in Sedgwick County Kansas. Ms. Plush is a

22
commissioned officer and an employee of Defendant City.

23
17.

Defendant City of Wichita (“City”) is and was at all times relevant hereto a

24
municipal corporation within the State of Kansas.

25
18.

Defendant Williams is a male, and was at all times relevant hereto, the Chief

26
of Police of the Wichita Police Department or successor to position thereof. He is named in

FIRST AMENDED CLASS ACTION COMPLAINT

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1 his individual and official capacity and may be served as set forth in the summons.

2 Defendant Williams is responsible for the administration of the policies and procedures of

3 the Department.

4

19.

Defendant Williams is a resident of the State of Kansas and the circumstances

5 giving rise to these causes of action occurred in Sedgwick County, Kansas.

6

20.

Plaintiffs are each an “employee” as defined by the Equal Pay Act (“EPA”),

7 29 U.S.C. §§203(e) and 213 (a)(1); and Title VII of the 1964 Civil Rights Act, 42 U.S.C. §

8 2000e(f).

9

21.

Plaintiffs are each also “persons claiming to be aggrieved” as it is used in Title

10 VII, 42 U.S.C. § 2000e-(a)-2000e5 (f).

11

22.

Defendant City is an employer as defined by the EPA, 29 U.S.C. § 203(d) and

12 Title VII, 42 U.S.C. § 2000 (e)(b).

13

IV. CLASS ALLEGATIONS

14

23.

Plaintiffs sue on their own behalf and on behalf of a Class of persons pursuant

15 to Fed. R. Civ. P. 23(b)(2) and (b)(3).

16

24.

The named plaintiffs bring this action on behalf of a Class of all

17
commissioned female officers currently or otherwise employed by defendants, who because
18
of their gender, have been:
19
a. subjected to a hostile work environment;
20
b. denied promotions or the ability and opportunity to be meaningfully
21
considered for promotions;
22
c. denied proper training opportunities;
23
d. denied proper peer support during and after emergency calls;
24
e. denied terms and conditions of employment that are commonly
25
granted to similarly situated or less qualified males;
26
f. paid less than similarly situated or less qualified males;

FIRST AMENDED CLASS ACTION COMPLAINT

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1

g. denied overtime opportunities when similarly situated or less qualified

2

males receive such;

3

h. retaliated against for challenging gender bias in the workplace;

4

i. judged by a different set of standards than that of similarly situated or

5

less qualified males;

6

j. received lower performance appraisals than that of similarly situated

7

or less qualified males;

8

k. denied transfer and rotation opportunities;

9

l. demoted to and assigned to less favorable shifts, work areas;

10

m. subjected to discipline more severe than that of similarly situated or

11

less qualified males; and/or

12

n. terminated or constructively discharged from employment.

13

25.

The above-described women constitute the “Class” for the purposes of this

14 lawsuit.

15

A. Rule 23(a)

16

1. Numerosity Requirement

17
26.

There are at least several hundred Class members. The Class is so large that

18
joinder of all members is impracticable.

19
2. Existence of Questions of Common Law and Fact

20
27.

Questions of law and facts common to the class include:

21
a. whether women have been treated differently than men as to promotions,

22
compensation, pay increases, training, discipline, demotions, proper peer

23
support, an/or job opportunities;

24
b. whether Defendant City knew or should have known of dissimilar
25
treatment;
26

FIRST AMENDED CLASS ACTION COMPLAINT

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1

c. whether Defendant City failed to take reasonably, or the legally, required

2

action to correct the “gender bias” in its employment practices in the

3

Police Department so that women could have the same employment

4

opportunities as men;

5

d. whether Defendant City has a pattern and practice of illegal discrimination

6

based on gender;

7

e. whether Defendant City has intentionally engaged in this illegal

8

discrimination;

9

f. whether Defendant City has intentionally engaged in this discrimination

10

with malice and/or reckless indifference to the federally protected rights of

11

the plaintiffs and Class;

12

g. whether plaintiffs and Class have been discriminated against because of

13

their gender;

14

h. whether plaintiffs and Class have been discriminated against by being

15

subjected to a hostile work environment on the basis of their gender;

16

i. whether Defendant City has made misrepresentations to plaintiffs and

17
Class regarding its employment policies and practices;
18
j. whether Defendant City has a duty to adequately supervise its staff
19
regarding employment practices at the Department;
20
k. whether Defendant City has breached its duty to supervise employment
21
practices by allowing and failing to remedy systematic discrimination
22
against female officers in compensation, promotion, discipline, and other
23
terms and conditions of employment;
24
l. whether Defendant Williams has a duty to adequately supervise the staff
25
regarding employment practices at the Department;
26

FIRST AMENDED CLASS ACTION COMPLAINT

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1

m. whether Defendant Williams has breached his duty to supervise

2

employment practices by allowing and failing to remedy systematic

3

discrimination against female officers in compensation, promotion,

4

discipline, and other terms and conditions of employment;

5

n. whether Defendant City’s facially neutral policies have had an adverse

6

impact on women with regard to their terms and conditions of

7

employment;

8

o. whether the plaintiffs and Class have been harmed because of the illegal

9

actions of Defendant City;

10

p. whether injunctive relief is appropriate as a remedy for the past, present

11

future discrimination; and

12

q. whether Defendant City’s current policies and practices affecting plaintiffs

13

and Class should be eliminated and replaced by new policies and practices

14

and, if so, which ones.

15

3. Typicality of Claims

16

28.

Plaintiffs’ claims are typical of the claims of the Class.

17
4. Adequacy of Representation

18
29.

Plaintiffs and Class counsel will fairly and adequately protect the interests of

19
the Class.

20
B. 23(b) Requirements

21
30.

Fed. R. Civ. P. 23(b)(2): The defendants have acted/refused to act and are

22
acting/refusing to act on grounds generally applicable to the Class, thereby making

23
appropriate final injunctive or corresponding declaratory relief to the Class as a whole.

24
31.

Fed. R. Civ. P. 23(b)(3): Common questions of fact and law predominate

25
over questions affecting only individual members.

26

FIRST AMENDED CLASS ACTION COMPLAINT

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1

32.

A class action is superior to other available methods for the fair and efficient

2 adjudication of this controversy.

3

33.

There are no unusual difficulties likely to be encountered in the management

4 of this litigation as a class action.

5

34.

Notice to the Class may be accomplished inexpensively, efficiently and in a

6 manner best designed to protect the due process rights of all Class members by means of

7 written notices supplied through defendants’ system of communication with their employees.

8

9

35.

V. CONTINUING VIOLATION Defendant City’s gender discrimination was the result of policies and

10 procedures dictated, known, tolerated, and/or intentionally ignored on a centralized basis at

11 the Wichita Police Department. It constitutes a continuing policy and practice of

12 discrimination on a department wide basis, and this policy operated at least in part during the

13 limitations period of this action. With discovery plaintiffs and Class will be able to

14 determine the exact dates that these practices began and at that time, will amended this

15 complaint to establish the opening date for membership into this Class.

16

VI. FACTUAL ALLEGATIONS

17 C. Defendant City’s Supervisors Have Ignored Longstanding Knowledge of Gender 18 Discrimination

19

36.

Defendant City’s supervisors have had longstanding knowledge of gender

20 discrimination throughout the Wichita Police Department and have failed to take any serious

21 action. Defendant City has engaged in this discrimination intentionally with malice, reckless

22 disregard, or deliberate ignorance of the federal rights of its female officers.

23

37.

Career progression is minimal for female officers. Commissioned female

24 officers were and are kept at lower lever positions longer than similarly situated or less

25 qualified males. The experiences of the plaintiffs and Class are typical. Females have

26

FIRST AMENDED CLASS ACTION COMPLAINT

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1 helplessly watched as male co-workers have been hand selected by male “buddies” and

2 coached through promotion.

3

38.

Further, female officers find it much more difficult than their similarly

4 situated male co-workers to obtain the training, tutorship, and job assignments necessary to

5 compete for promotions.

6 D. Wichita Police Department’s Employment Policies Have Allowed Supervisors to

7

Exercise Excessive Subjectivity and has Fostered Pay and Promotion Decisions that Discriminate Against Women

8
39.

The excessive subjectivity permitted by Defendant City’s employment

9
policies and procedures resulted in supervisors giving benefits to friends and promoted a

10
“good ol’ boy” network. This is in direct conflict with the Code of Ethics Regulation 1.1

11
which states that officers will never permit personal feelings or friendships to influence their

12
decisions. Often, male officers are allowed to remain on calls that extend beyond the end of

13
their shift which regularly provides those male officers with overtime compensation while

14

female officers are regularly dismissed from the scene without being offered the opportunity

15

for overtime.

16

40.

The promotion procedure employed by Defendant includes an interview with

17

the “Oral Board.” Great weight is placed on the determination of the oral board when an
18

officer is considered for a promotion. There are no records of the interviews kept for later
19

review. As such, these interviews are totally and excessively subjective.
20

41.
21

The excessive subjectivity given to supervisors by Wichita Police

Department’s employment procedures is exhibited in numerous areas, including the
22

following:
23

(1) no fixed rules as to how salary increases are given;
24

(2) no fixed rules prescribed regarding what selecting officials
25

could ask job candidates during interviews;
26

FIRST AMENDED CLASS ACTION COMPLAINT

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1

(3) no procedures exist for review of the approval or disapproval

2

of overtime hours that are approved by supervisors; and

3

(4) no meaningful guidance circumscribed for the supervisors who

4

are entrusted with granting or denying overtime.

5

42.

The excessive subjectivity denied plaintiffs and the Class the same

6 compensation, promotions, and employment benefits as Department made available to men

7 and violated their rights.

8 E. Statistical Evidence Shows that Gender Discrimination Continues to Run 9 Rampant Throughout the Wichita Police Department in Regards to Commissioned
Female Officers

10
43.

Wichita Police Department considers females suitable for non-commissioned

11
positions, but are excluded, overlooked and discriminated against regarding becoming or

12
remaining commissioned officers. As of May 24, 2003, there were a total of 642 total

13
commissioned officers employed by the Wichita Police Department. Only a little more than

14
10% (67 total) of commissioned officers are female. However, of 181 non-commissioned

15

officers, 74.5% (135 total) are female. Of the 135 non-commissioned female officers, 122
16

are considered civilian employees. Thus, there are a sufficient number of female employees

17

to occupy non-commissioned positions, but the Wichita Police Department foes not consider
18

females “man enough” to carry full fledge law enforcement rights.
19

44.
20

Additionally, of the 642 commissioned officers, 210 of those positions are for

the ranks of detective and above. Of that 210, only 17 are possessed by female officers.
21

45.
22

Further, females are also excluded from special and elite units. There are

several units of the Special Operations Bureau. There are no commissioned female officers
23

employed as part of the Special Weapons and Tactics (“SWAT”) Unit. There are no
24

commissioned female officers employed as part of the Explosive Ordnance Disposal
25

(“EOD”) Team. There are no commissioned female officers employed as part of School
26

Resource Officer (“SRO”) program. There are no commissioned female officers employed

FIRST AMENDED CLASS ACTION COMPLAINT

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1 as part of the “gang unit.” Exclusion from these specialized and elite units harms female

2 officer’s self esteem and creates unequal opportunities for advancements. In simple terms,

3 such exclusion reinforces the Department’s attitude that female officers are not valued

4 equally to male officers; nor as qualified as their male counterparts.

5

F. The Wichita Police Department Has Failed to Address Female Officers’

Complaints of Gender Discrimination
6

7

46.

Reports to the Wichita Police Department of adverse impact and/or treatment

8 regarding promotion, training, compensation, overtime, demotions, terminations, and hostile

9 work environment go unheeded; are simply ignored or responded to with a form denial;

10 investigated only in a cursory fashion; and/or the remedial measures are ineffective and has

11 an adverse impact on other female officers. The defendants have used inconsistent EEO

12 procedures in reviewing complaints by female officers. Some females experienced

13 retaliation for asserting complaints of gender discrimination. In spite of official statements

14 that defendants support equal treatment for females, the message clearly communicated to

15 the employees is that gender discrimination against females is standard operating procedure,

16 and will not generally result in any significant adverse employment action.

17

47.

Female officer’s are in a conundrum when faced with the decision to report

18 the illegal actions of their peers and supervisors. If a female officer reports the illegal

19 activity of male officers, the female is labeled a “bitch” and often her performance

20 evaluations begin to note that the female officer has trouble “getting along” with other

21 officers. All the while, the male officers enjoy the luxury of never receiving a note in his

22 personnel file. Thus, female officers have two realistic choices: (1) report the illegal activity

23 and face banishment and being labeled a “bitch” or (2) or not report the illegal activity and

24 stay in a “woman’s place.”

25

48.

Reports of sexual harassment were made against a sergeant by female officers

26 who were employed at the West Bureau. This sergeant was not terminated, suspended, or

FIRST AMENDED CLASS ACTION COMPLAINT

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1 even reprimanded. In fact, he was essentially granted a promotion of power as he is currently

2 assigned as a watch commander, which is equivalent to the law enforcement powers as a

3 lieutenant.

4

49.

Female officers are forced to work under the supervision of sergeants even

5 after the female officer’s make written complaints regarding a hostile work environment.

6 Defendant Williams has stated that a hostile work environment cannot occur after one week

7 and simply dismisses the complaints of female officers.

8

50.

Indeed, before 1996, and thereafter, female employees have complained to

9 defendants that they have not been treated equally as similarly situated males. Yet,

10 defendants have failed to adequately address these complaints.

11

G. The Wichita Police Department’s Tolerance of Gender Discrimination Has

12

Infected Many Aspects of Wichita Police Department’s Operations Affecting

Women

13

51.

Defendants have pursued, condoned, acquiesced in, and/or have failed to

14

eliminate the continuing policies and/or practices that, though often facially neutral, have

15

adversely impacted the Wichita Police Department’s female employees and/or have the

16

intent of denying female officers equal job opportunities and conditions of employment.

17

These policies and practices include without limitation:

18

(1) failing to provide equal training opportunities;

19

(2) failing to provide equal discipline to males;

20

(3) forcing female officers to leave the scene of a call even when the
21

female officer was the first officer on the scene;
22

(4) failing to recognize the achievements of female officers for their
23

participation in the same calls that similarly situated male officers are recognized;
24

(5) promoting gender-biased individuals into managerial and supervisory
25

positions without determining or attempting to evaluate whether such individuals are gender-
26

biased;

FIRST AMENDED CLASS ACTION COMPLAINT

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1

(6) relying upon subjective, gender-biased and/or arbitrary criteria used

2 predominately by a male supervisory force in making job assignments, compensation,

3 overtime, training, termination, and promotional decisions;

4

(7) failing and refusing to consider female officers for desirable work

5 assignments, promotions and management positions on the same basis as male officers are

6 considered;

7

(8) failing and refusing to provide female employees with the necessary

8 work experience and training to qualify them for more desirable positions on the same basis

9 as male officers are provided with such experience and training;

10

(9) paying female officers less than similarly situated male officers;

11

(10) retaliating against or permitting others to retaliate against or permitting

12 others to retaliate against female officers who protest the defendants’ discriminatory policies

13 and/or patterns or practices;

14

(11) subjecting female officers to different and more rigorous requirements

15 in order to be eligible for promotional or other job opportunities than those to which male

16 officers are subjected;

17
(12) failing to provide females with the proper peer support during calls
18
thereby jeopardizing the safety of the female officers;
19
(13) failing to address the extremely high turnover rate of commissioned
20
female officers; and
21
(14) failing to promote an atmosphere where commissioned female officers
22
are encouraged to report incidents of sexual harassment or unequal treatment without being
23
subject to retaliation.
24
H. Each of the Plaintiffs Has Experienced Unlawful Treatment as a Result of the 25 Wichita Police Department’s Policies

26

FIRST AMENDED CLASS ACTION COMPLAINT

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1

52.

Each of the plaintiffs has experienced gender based discriminatory treatment

2 as described below.

3 Plaintiff Greta Semsroth

4

53.

Plaintiff Greta Semsroth began her employment with Department with

5 January 2000 when she graduated from the Kansas Law Enforcement Training Center

6 (“Academy”). During her tenure at the Academy, Plaintiff Semsroth was president of her

7 class and was one of the top students in her graduating class. Plaintiff Semsroth has faced

8 resistance from the primarily male force since the beginning of her law enforcement career.

9 During her time at the Academy, Plaintiff Semsroth has been told that certain weapons were

10 a “man’s gun” and women could not handle them.

11

54.

Plaintiff Semsroth has been subjected to sexually harassing behavior from her

12 supervisors. When Plaintiff Semsroth was training in the field, her Field Training Officer

13 (“FTO”) asked Plaintiff Semsroth out on a date. Plaintiff Semsroth was uncomfortable with

14 the advance and did not return any interest to FTO. The FTO drove to Plaintiff Semsroth’s

15 residence at approximately 11:00 p.m. and repeatedly pounded on the door of her residence.

16 He continually screamed Plaintiff Semsroth’s name until she would exit her residence. At

17
that time, Plaintiff Semsroth told the FTO to get off her property. Department took no

18
actions against the FTO.

19
55.

Department has failed to recognize Plaintiff Semsroth for awards when every

20
other similarly situated males who were involved with same calls actually received awards.

21
Department has also failed to provide Plaintiff Semsroth with the proper critical support

22
during emergency situations. In October 2001, Plaintiff Semsroth was dispatched to a

23
suspicious character call along with three male officers. As a result of their participation in

24
this call, each of the male officers received officer of the month recognition. However,
25
Plaintiff Semsroth, the only female officer on the call, did not receive any recognition for her
26
participation in the call.

FIRST AMENDED CLASS ACTION COMPLAINT

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1

56.

Again, on or around June 3, 2002, Plaintiff Semsroth answered a call where

2 there was a suspect shooting at officers. Bullet shots were striking the pavement as close as

3 15 ft away from Plaintiff Semsroth. The male officers on the scene were being replaced by

4 back up officers; however, Plaintiff Semsroth was not replaced until some time later when

5 SWAT arrived on the scene as if no male officers were willing to replace a female officer.

6 Officers involved in the June 3, 2002 incident were recognized with awards for their valor,

7 given a five day administrative leave, and Critical Incident Stress Management Therapy

8 (CISMT). Plaintiff Semsroth issued a complaint to Lieutenant Hanley and Captain Tabor

9 regarding the Department failing to provide her with policy mandated CISMT and being the

10 only officer not to receive an award for her participation in the call. However, Department

11 ignored Plaintiff Semsroth’s complaint. Plaintiff Semsroth was the only female officer on

12 the scene and was the only officer who was not awarded a Gold Wreath of Valor.

13

57.

Not only does Department fail to equally value the life and sacrifices of

14 female officers as male officers, it allows male officers to taunt female officers who

15 complain about not receiving recognition being treated equally. On or about April 21, 2003,

16 someone placed pictures and a note in Plaintiff Semsroth’s mailbox. The pictures were of

17
awards from the chest of an unknown officer and the note tauntingly stated that Plaintiff

18
Semsroth was to cut the pictures out and pin them on her chest because this was as close as

19
she would get to the real thing.

20
58.

Plaintiff Semsroth was distraught and was consoled by other female officers.

21
Plaintiff Semsroth also reported the incident to superior officers and questioned Officer

22
Tucker about the incident. He denied leaving the picture and the note. It was later

23
discovered that Officer Tucker actually left the crude pictures and note. Supervisors did not

24
discipline Officer Tucker for his actions of leaving the harassing items or for not telling the
25
truth about leaving the items in Plaintiff Semsroth’s mailbox when asked. He was not
26

FIRST AMENDED CLASS ACTION COMPLAINT

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1 disciplined despite the fact that both actions are in violation of Departments policies. The

2 official response from Department was “you now Tucker. He’s always pulling pranks.”

3

59.

The policy of Department mandates that officers are to receive back up

4 assistance by another officer unless the requesting officer disregards the back up. On several

5 occasions, male officers have failed to provide Plaintiff Semsroth with the proper assistance.

6 For instance, on or about October 15, 2003, Plaintiff Semsroth responded to a disturbance

7 call. Officer Nixon was instructed by the dispatch operator to back-up Plaintiff Semsroth, yet

8 Officer Nixon never arrived to the scene to assist Plaintiff Semsroth. Plaintiff Semsroth

9 reported the incident to a supervisor who stated that “he should have backed you.” The

10 supervisor took no corrective action against Officer Nixon and simply stated that it was

11 “Nixon just being Nixon.”

12

60.

Plaintiff Semsroth reported the unequal treatment that she and other females

13 were facing on about October 27, 2003 to the Equal Employment Office (EEO) of Defendant

14 City. Specifically, Plaintiff Semsroth met with Susan Lieker, who is an employee of

15 Defendant City and working in her official capacity at all relevant times herein. A second

16 meeting took place with Ms. Lieker on November 17, 2003.

17
61.

In retaliation for making her complaints, approximately seven days after her

18
second meeting with EEO, Plaintiff Semsroth was moved from her current assignment, 35

19
beat, to what is commonly referred to as “banishment beat,” 39 beat. This beat is commonly

20
reserved for new recruits and individuals who are being disciplined. Movement to this beat

21
adversely affected Plaintiff Semsroth in that the quality of calls and the quantity of calls

22
decreases. With such a decrease in activity and challenging calls, Plaintiff Semsroth’s

23
opportunity for advancement dramatically decreases. Further, there is a stigma attached to

24
officers who are moved to this beat, one which Plaintiff Semsroth should not be forced to
25
endure, while the males who were causing the unequal treatment are unaffected.
26

FIRST AMENDED CLASS ACTION COMPLAINT

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1

62.

Plaintiff Semsroth has also received negative remarks in her personnel file

2 regarding conflicts with other male officers. However, no remarks have been made in

3 similarly situated male officers’ personnel files regarding the many complaints made by

4 plaintiff Semsroth. Such unequal treatment adversely affects Plaintiff Semsroth’s ability to

5 receive promotions, pay increases and other terms and conditions of employment.

6

63.

On or about May 10, 2004, Plaintiff Semsroth was riding with Recruit Officer

7 Watson, who was squirming around in his seat. Plaintiff Semsroth inquired as to whether the

8 male officer was alright. The male had his hand near the mid-section of his groin area and

9 said, “I’m adjusting myself” followed by “some of the guys told me I need to watch what I

10 say…but I think the girls like it.” It was learned that this was not the first inappropriate

11 comment made by this Recruit Officer, yet this individual has not been subjected to any

12 discipline for his actions.

13 Plaintiff Kim Warehime

14

64.

Plaintiff Warehime has been employed by Department for approximately

15 eight years. During her tenure with Department, Plaintiff Warehime has been subjected to

16 unequal treatment including, but not limited to, sexual harassment, unequal discipline, and a

17
hostile work environment. This treatment, as it does for many of the female officers, began

18
in the Training Academy

19
65.

In or around February 2001, a male officer spoke to Plaintiff Warehime in a

20
vulgar and inappropriate manner. The male officer began to discuss certain sexual topics

21
with Plaintiff Warehime. Plaintiff Warehime did not participate in the conversation as she

22
was made so uncomfortable. During this inappropriate conversation, the male officer stated

23
that he had raped another woman. The following day the same officer exposed his erect

24
penis in front of Plaintiff Warehime.

25
66.

As a result of this conversation and incident, Plaintiff Warehime reported the

26
officer’s statements to her supervisors. However, her supervisors failed to even investigate

FIRST AMENDED CLASS ACTION COMPLAINT

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1 the rape and simply stated that “he was just trying to turn you on.” Additionally, her

2 supervisor threatened Plaintiff Warehime in order to deter her from pursing certain criminal

3 charges against the officer.

4

67.

Additionally, on or about January 5, 2004 Plaintiff Warehime made a

5 comment about a male officer having a disease. Plaintiff Warehime was investigated and

6 ultimately disciplined regarding the statement. Plaintiff Warehime was reprimanded with a

7 level D charge of conduct unbecoming an officer.

8

68.

However, male officers have been known to make similar and more insulting

9 statements as well as more egregious violations of policy, yet, those male officers are not

10 disciplined for those actions, or at least, receive nothing more than a slap on the wrist. For

11 instance, in October of 2003, Plaintiff Semsroth was bitten by a suspect during a call. The

12 next day in front of squad1 Lieutenant Hanley asked if the suspect had any diseases. In

13 front of everyone present at squad, Sergeant Sims inquired “before, or after the bite?” No

14 actions were taken against Sgt. Sims, a male officer, for actions similar to those of Plaintiff

15 Warehime.

16

69.

Also, Recruit Officer Gant damaged a Department vehicle while on duty and

17
failed to report the incident to his Field Training Officer (“F.T.O.”). Recruit Officer Grant
18
also failed to tell the truth about the matter when he was asked about the situation. Further,
19
Sergeant Hungria instructed the F.T.O. to complete a 6100 report instead of a 6105 report,
20
which, in plain English, meant to cover up the accident and the Recruit Officer would not be
21
in any trouble. The FTO reported both the accident and the attempted cover-up to Captain
22
Tabor. Captain Tabor failed to discipline the Sergeant and the Recruit Officers, both males,
23
despite the fact that such actions are immediate grounds for dismissal. In comparison to the
24
actions of these males, Plaintiff Warehime’s punishment was the equivalent of swatting a fly
25

26 1 Squad is term commonly used by members of the department to refer to a general meeting of all of the
officers of a Bureau where all of the officers who are in the process of beginning their shift are present.

FIRST AMENDED CLASS ACTION COMPLAINT

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1 with a hammer. While Department allows male officers to intentionally disregard policy

2 without facing proper discipline.

3

70.

Plaintiff Warehime also was invited to a meeting with other female officers

4 where the unequal treatment of female officers was discussed. The following day,

5 supervisors of Department requested the presence of Plaintiff Warehime and began to harshly

6 question her regarding the meeting and the purpose of such meeting. The actions by

7 Department were designed to chill Plaintiff Warehime’s freedom of association.

8

71.

Plaintiff Warehime has attempted to secure an emergency transfer because of

9 the hostile work environment that she was forced to endure, which was denied. However,

10 there were at least five similarly situated male officers who were granted transfers within the

11 same general time period. Further, two of the transfers were for what Department considered

12 “supervision difficulties.”

13

72.

Plaintiff Warehime has been denied for a SRO position at least three times

14 despite the fact that she scored extremely well in her interviews. Each time that Plaintiff

15 Warehime was denied, the position was given to similarly situated or less qualified male.

16 Additionally she has been passed over regarding Community Policing positions.

17
Plaintiff Sarah Voyles

18
73.

Plaintiff Voyles has been a member of Department for a number of years. Her

19
years with the department has been marred by the illegal treatment that she has been forced

20
to endure. As with most women, Plaintiff Voyles’ has faced sexual harassment and

21
discriminatory acts from the beginning of her law enforcement career at the Academy. She

22
has also been subjected to unequal discipline, retaliation and treatment that she would not

23
have received if she could have just been born a white male.

24
74.

In addition to being a commissioned female officer, Plaintiff Voyles is a new

25
mother. Plaintiff Voyles was pregnant while she was employed at Department. During this

26
pregnancy, Plaintiff Voyles was subjected to numerous “fat jokes” which cut at the very fiber

FIRST AMENDED CLASS ACTION COMPLAINT

-21-

1 of Plaintiff Voyles’ self-worth. She was also forced to endure male officers commenting on

2 Plaintiff Voyles’ new found eating habits.

3

75.

Not only was Plaintiff Voyles forced to endure such unequal treatment, she

4 was reprimanded when she made complaints to her supervisors. Plaintiff Voyles was being

5 emotionally damaged from the treatment that she was receiving and reported the conduct to

6 her superior officers. When she expected a fair and equal response from her supervisor, she

7 was orally reprimanded by her superior. This is shocking given the fact, that females are

8 often disciplined by supervisors when male officers initiate complaints against female

9 officers.

10

76.

The unequal treatment faced by Plaintiff Voyles was not confined to this one

11 instance. Department states that it is against its policy to institute a quota for issuing traffic

12 tickets. However, in October 2001, Plaintiff Voyles was assigned to desk work because she

13 failed “to write enough traffic tickets.” At the same time, there were at least two similarly

14 situated male officers who failed to “write enough traffic tickets” that were not disciplined in

15 any manner.

16

77.

Additionally, in 2002, Plaintiff Voyles was reprimanded for only attending

17
one community meeting. However, there were a number of male officers who failed to

18
attend two meetings or any at all, that were not terminated.

19
Plaintiff Heather Plush

20
78.

Plaintiff Plush has dedicated over two years of service to the Wichita Police

21
Department. During this time, Plaintiff Plush has been wrongfully denied transfers,

22
threatened, and subjected unequal discipline because she is a female.

23
79.

On or about May 12, 2004, Plaintiff Plush was responding to two separate

24
calls. At the conclusion of these calls, Sergeant Hungria made verbal statements to Plaintiff
25
Plush regarding her performance during these calls. During the second of the two calls,
26
Sergeant Hungria verbally reprimanded Plaintiff Plush for failing to draw her gun at the

FIRST AMENDED CLASS ACTION COMPLAINT

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1 scene. However, her partner, who was a male, did not have his weapon drawn; yet, Sergeant

2 Hungria did not even mention this fact to Plaintiff Plush’s male partner.

3

80.

On or about May 11, 2004, Plaintiff Plush was the second officer to arrive on

4 the scene of a call and the only female officer who responded to the call. Later in the call,

5 Plaintiff Plush attempted to assist the male officers in searching the suspect residence.

6 However, she, and only her, was dismissed from the scene because she “was no longer of any

7 use” to the male officers on the scene. Neither of the male officers who arrived after Plaintiff

8 Plush was required to leave the residence.

9

81.

Plaintiff Plush has also been subjected to discipline when she asked for

10 clarification from a supervisor on the scene of a call. The supervisor essentially informed

11 Plaintiff Plush that it was not a woman’s place to question a supervisor regarding any

12 decisions made by that supervisor. However, male officers are allowed to speak to their

13 supervisors during calls regarding the incidents that occur without being disciplined.

14

82.

Furthermore, Plaintiff Plush also requested a transfer from Sergeant Hungria.

15 As with Plaintiff Warehime, this request was denied while similarly situated male officers

16 have been allowed to transfer when there are “supervisor difficulties;” thereby forcing

17
female officers to work under such stressful and unequal hostile work environments.

18
Defendant Williams has handled this situation by simply stating “a hostile work environment

19
cannot exist after one week.” Defendant Williams never interviewed or investigated the

20
allegations raised by Plaintiff Plush nor any of the plaintiffs and Class.

21
83.

Since the initial filing of this Action, Plaintiff Plush has also been retaliated

22
against. Within weeks of initially filing the instant action, three separate complaints were

23
filed against Plaintiff Plush. There are three ironic aspects of the complaints: (a) that each of

24
the actions that were reported occurred between seven months and one year prior to the date
25
that they were reported; (b) male officers who were involved in the actions were not
26

FIRST AMENDED CLASS ACTION COMPLAINT

-23-

1 investigated; and (c) the complaints only arose after a supervisor instructed officers to find

2 anything on the plaintiffs that they could.

3

84.

Plaintiffs Semsroth, Warehime, Voyles, and Plush have all been emotionally

4 affected by the treatment procured by Defendant. They have been forced to take medication,

5 take days off of work, request transfers, and various emotional breakdowns.

6

7

8

85.

First Cause of Action Violation of Title VII and 42 USC § 1981 Plaintiffs and Class adopt and incorporate the preceding paragraphs as fully

9 set forth herein.

10

86.

Defendant has discriminated against plaintiffs and Class in violation of Title

11 VII of the Civil Rights Act by subjecting them to different treatment because of their gender.

12 Defendants’ conduct violates disparate treatment, disparate impact, retaliation, and pattern

13 and practice principles of Title VII. Representative Plaintiffs Semsroth, Warehime, and

14 Voyles have received a right to sue letter and in doing so qualify themselves and other female

15 officers who are representative plaintiffs to pursue relief under Title VII.

16

87.

As a result of defendants’ conduct alleged in this Class Action Complaint,

17
plaintiffs and Class have suffered and continues to suffer harm including, but not limited to

18
lost wages, lost benefits, and other financial loss, as well as humiliation, embarrassment,

19
emotion and physical distress, and mental anguish. These damages are continuing and

20
should be awarded in an amount to be determined at trial.

21
88.

In the employment practices described above, defendants intentionally

22
engaged in discriminatory practices with malice or with reckless indifference to the federally

23
protected rights of plaintiff, entitling plaintiff to punitive damages.

24
Second Cause of Action
25
Violation of Equal Pay Act, 29 U.S.C. 206 (d)
26

FIRST AMENDED CLASS ACTION COMPLAINT

-24-

1

89.

Plaintiffs and Class adopt and incorporate the preceding paragraphs as fully

2 set forth herein.

3

90.

This claim is brought on behalf of all plaintiffs and the Class.

4

91.

Defendants have intentionally discriminated against plaintiffs and Class on the

5 basis of their sex by paying them lower wages that it pays its male officers for equal work of

6 equal skill, effort, or responsibility and which are performed under similar working

7 conditions.

8

92.

As a result of defendants’ illegal actions, plaintiffs and the Class lost wages

9 through compensation. These damages are continuing.

10

Third Cause of Action

11

Denial of Equal Protection

12

93.

Plaintiffs individually adopt and incorporate the preceding paragraphs as fully

13 set forth herein.

14

94.

On information and belief, Defendant Williams has treated similarly situated

15 male employees differently then plaintiffs.

16

95.

Defendant Williams has denied plaintiffs equal protection of the laws, in

17
violation of the United States Constitution.

18
96.

The unconstitutional treatment of plaintiffs was a direct result of Defendant

19
Williams failing to enforce the policies and regulations of the Defendant City in an equal and

20
non-discriminatory manner.

21
97.

Defendant Williams has deprived plaintiffs of their clearly established rights

22
under the United States Constitution, and under federal law, under color of state law in

23
violation of 42 U.S.C. § 1983.

24
98.
25

Defendant Williams acted under color of state law.

26

FIRST AMENDED CLASS ACTION COMPLAINT

-25-

1

99.

As a direct and proximate result of this constitutional violation, plaintiffs have

2 suffered damages, including lost wages, consequential damages, loss of reputation, and

3 emotional distress.

4

Fourth Cause of Action

5

Conspiracy to Interfere with Civil Rights in Contravention to 42 USC § 1985

6

100.

Plaintiffs individually adopt and incorporate the preceding paragraphs as fully

7 set forth herein.

8

101.

Two or more of defendants, and/or at least one of defendants and one or more

9 third parties, conspired for the purpose of depriving plaintiffs and Class of the equal

10 protection of the laws, or of equal privileges and immunities under the laws, of the United

11 States.

12

102.

Defendant Williams and one or more other persons engaged in this conspiracy

13 did act in furtherance of the object of this conspiracy.

14

103.

As a direct and proximate result of this conspiracy, plaintiffs and class

15 suffered damages to their property, including but not limited to lost wages, consequential

16 damages, loss of reputation, and emotional distress.

17
VII. PRAYER FOR RELIEF
18
WHEREFORE, plaintiffs and the Class pray for relief as follows:
19
A) Certification of the case as a class action on behalf of the proposed plaintiff
20
class and designation of plaintiffs as representatives of the Class and their counsel of record
21
as Class Counsel;
22
B) All equitable damages which individual plaintiffs and the class have
23
sustained as a result of defendants’ conduct, including, but not limited to, back pay, front
24
pay, general and special damages for lost compensation and job benefits that they would
25
have received but for the discriminatory practices of defendants;
26

FIRST AMENDED CLASS ACTION COMPLAINT

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1

C) For Plaintiffs’ individual, non-class claims, all damages they have sustained as

2 a result of defendant’s conduct, including back pay, front pay, general and specific damages

3 for lost compensation and job benefits they would have received but for the discriminatory

4 practices of defendant, damages for emotional distress, and punitive damages, according to

5 proof;

6

D) Exemplary and punitive damages in an amount commensurate with

7 defendants’ ability to pay and to deter future conduct;

8

E) For injunctive and equitable relief against defendants and its directors,

9 officers, owners, agents, successors, employees and representatives, and any and all persons

10 acting in concert with them, from engaging in each of the unlawful practices, policies,

11 customs and usages set forth herein;

12

F) An adjustment of the wage rates and benefits for plaintiffs and the Class to

13 that level which plaintiffs and the class would be enjoying but for defendants’ discriminatory

14 practices;

15

G) Costs incurred, including reasonable attorneys’ fees, to the extent allowable

16 by law;

17
H) Pre-Judgment and Post-Judgment interest, as provided by law; and
18
I) Such other and further legal and equitable relief as this Court deems
19
necessary, just and proper.
20

21

22

DATED: March 31, 2005

23

24

Respectfully submitted,

25

26
s/Lawrence W. Williamson, Jr.

FIRST AMENDED CLASS ACTION COMPLAINT

-27-

1

Lawrence W. Williamson, Jr. #21282

SHORES, WILLIAMSON & OHAEBOSIM, LLC

2

1400 EPIC Center

3

301 North Main Wichita, Kansas 67202

4

Telephone: (316) 261-5400

Facsimile: (316) 261-5404

5

Attorney for plaintiffs and Class
6

7

8

DEMAND FOR A JURY TRIAL

9

COMES NOW plaintiffs and Class, by and through counsel, and respectfully

10 requests that this matter be set for a jury trial. Wichita, Kansas designated for place of trial.

11

12

13

By: s/Lawrence W. Williamson, Jr.

14

Lawrence W. Williamson, Jr. #21282

SHORES, WILLIAMSON & OHAEBOSIM, LLC

15

1400 EPIC Center

301 North Main

16

Wichita, Kansas 67202

Telephone: (316) 261-5400

17

Facsimile: (316) 261-5404

18

Attorney for plaintiffs and Class

19

20

CERTIFICATE OF SERVICE

21

I hereby certify that on March 31, 2005, I electronically filed the foregoing with the

22 clerk of the court by using the CM/ECF system, which will send a notice of electronic filing

23 to the following:

24

Kelly J. Rundell #12386

25

Attorney for Defendants

OFFICE OF THE CITY ATTORNEY

26

455 N. Main, 13th floor

KRundell@wichita.gov.

FIRST AMENDED CLASS ACTION COMPLAINT

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FIRST AMENDED CLASS ACTION COMPLAINT

s/ Lawrence Williamson Lawrence W. Williamson
-29-

 
 Semsroth v. City of Wichita, 239 F.R.D. 630 (2006)
239 F.R.D. 630 United States District Court,
D. Kansas.
Greta SEMSROTH, et al., Plaintiffs, v.
CITY OF WICHITA, et al., Defendants.
No. 04-1245-MLB-DWB. | Nov. 15, 2006.
Attorneys and Law Firms
*631 Lawrence W. Williamson, Jr., Shores, Williamson & Ohaebosim, LLC, Wichita, KS, for Plaintiffs.
Kelly J. Rundell, Law Department, Wichita, KS, for Defendants.
Opinion
MEMORANDUM AND ORDER
BOSTWICK, United States Magistrate Judge.
Before the Court is Defendants’ oral motion for Plaintiffs to pay all or part of the costs relating to the discovery of Defendants’ electronic mail. Plaintiffs filed a Brief Addressing Cost-Shifting for Discovery of Electronic Mail (Doc. 58), opposing the shifting of any cost burden from Defendants to Plaintiffs. Defendants filed a Memorandum Addressing Cost-Shifting for Discovery of Electronic Mail (Doc. 63), in support of its oral motion, and Plaintiffs filed an additional Reply Memorandum Regarding Shifting Costs of Discovery of Electronic Evidence (Doc. 66). After discussion about this matter at a scheduling conference, Plaintiffs filed a Supplemental *632 Memorandum (Doc. 117), and Defendants also filed a Supplemental Memorandum, with an attached Affidavit of Kevin Norman (hereafter Norman Aff.), and excerpts from several deposition transcripts. (Doc. 121).
BACKGROUND
Plaintiffs, female officers of the City of Wichita’s (“City”) police department, filed suit against the City, the Police Department, and Chief Norman Williams in his individual and official capacities, alleging a multitude of violations of federal and state law. Plaintiffs allege that, while working for the City, they were subject to, among other things, sexual harassment, hostile work environment, gender discrimination, and violations of

their equal protection and due process rights in violation of various federal and state laws. See generally, Plaintiffs’ Amended Complaint. (Doc. 53).
The case was filed as a class action, but the District Court denied Plaintiffs’ motion to certify a class. (Doc. 86). The undersigned magistrate judge later denied Plaintiffs’ motion to amend their complaint in order to re-assert class claims. (Doc. 118). As a result, this case now involves only the claims of the four named plaintiffs.
During discovery, Plaintiffs requested information relating to e-mails sent to or by other officers within the Wichita Police Department. Through negotiations, the parties narrowed that request to copies of e-mails from 117 different supervising officers to the extent that such e-mails exist on a back-up tape of July 23, 2004.
Defendants store e-mail information only on (1) their active user e-mail files and (2) on back-up tapes. Plaintiffs assert that a search of current active user files is inadequate because there is no way to obtain information regarding past deleted e-mails. Thus, the back-up tape is the only real source of information regarding e-mails in existence on July 23, 2004, but that may have been deleted thereafter.
The City keeps back-up tapes for disaster recovery purposes only, and not to retrieve information. Thus, in order to conduct a word search of the e-mails contained on a given back-up tape, the City would have to restore the back-up tape to an e-mail server. Because of recent hardware upgrades, the City has an Exchange 5.5 server available for such a restoration. However, despite such hardware availability, the City claims that new software and labor costs would be substantial. The current dispute revolves around who should pay the costs of restoring the back-up tapes and retrieving the requested information from the July 23, 2004, back-up tape.1

1

Defendants have not claimed that the requested search

of e-mails is irrelevant within the meaning of

Fed.R.Civ.P. 26(b)(1), and it does appear that such a

search is reasonably calculated to lead to the discovery

of relevant evidence. Defendants’ motion only asks to

shift the cost of the e-mail search to Plaintiffs’ either in

whole or in part.

Kevin Norman is the person who has supervised and monitored work of the City’s IT/IS Department in this case. In his most recent affidavit (Doc. 121, Norman Aff.), Norman reviews the actions the City has taken to date to comply with Plaintiffs’ demands for discovery of electronic data and specifically e-mail.2 There are two ways to search the e-mail files of the 117 supervisors for the specific words Plaintiffs’ have requested: (1) By use
1

Semsroth v. City of Wichita, 239 F.R.D. 630 (2006)

of a software program known as Discovery Attender which will search the entire back-up tape at once after it is restored and loaded on the Exchange 5.5 server; and (2) a “manual” search of the copies of 117 e-mail accounts of these supervisors which the City has copied as .pst files. The manual method requires that each .pst file be loaded and then searched using the Microsoft Outlook search feature by searching the subject and message bodies of all e-mails. Norman notes that under the manual system, each .pst file would have to be searched multiple times depending on the number of keywords desired, then any identified e-mail message would have to be opened *633 and copied to a separate folder. (Doc. 121, Norman Aff. ¶¶ 5, 7).

2

Norman states that the City IT staff has already spent

$20,560.20 for past work related to electronic discovery

requests by Plaintiffs in this case. (Doc. 121, Norman

Aff. ¶ 3). Those expenses include $16,710.20 to

purchase additional back-up tapes and two tape drives

in order for the City to be able to retain past data. (Doc.

63, Norman Aff. ¶ 4).

Norman sets out the costs of the proposed search using the two alternative methods. To use the Discovery Attender software program would require that this software be purchased at an estimated cost of $2,224.953 which includes the cost of shipping, handling and minimal support. The software would then be loaded by City IT/IS staff on the server and they would run the search of the back-up tape using the words requested by Plaintiffs. To search the 117 e-mail boxes on the back-up tape for the seventeen (17) words identified by Plaintiffs would take an estimated 8 hours at a rate of $50 per hour, bringing the total estimated cost to $2,624.95. (Doc. 121, Norman Aff. ¶ 6).

3

This was the cost quoted to Norman on May 26, 2006.

(Doc. 121, Norman Aff. ¶ 5).

To do the search “manually,” i.e., by having the City’s IT/IS staff search the .pst files individually using Microsoft Outlook, is estimated to take 20 minutes for each of the 117 mailboxes for supervisors which, at an hourly rate of $50, would be approximately $1,950. This process is labor-intensive and more subject to human error, and the time (and therefore cost) could be greater in the event numerous documents are located and need to be loaded to other files. (Doc. 121, Norman Aff. ¶ 7-8).
Plaintiffs argue that the cost of this electronic discovery should be borne by Defendants as the producing party, and that requiring the City to expend these costs would not constitute an “undue burden” on the City. The City seeks a protective order which would require that the

costs of this search should be borne, at least in part, by Plaintiffs. The City notes that it has no future use for the Discovery Attender software, it would not buy that software absent an order of the Court, there is no evidence that the search of the back-up tape will even find any of the words identified by Plaintiffs for use in a search, and the burden of compliance with Plaintiffs’ requested discovery would be an undue burden on Defendants.
The Court has withheld ruling on this issue in the hope that the parties would be able to reach some compromise concerning e-mail production that would satisfy both sides. During the time since this issue was first raised, the parties have apparently explored various ways to accomplish a search of the specific back-up tape in issue, but no agreement has been reached. Plaintiffs have proposed alternative methods of searching which would have Plaintiffs’ expert conduct the search, but the City has refused these alternatives since the electronic data to be search contains highly confidential information.
DISCUSSION
[1] [2] While there is a presumption that the responding party will bear its own costs of production, the Federal Rules permit the Court to grant a protective order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c). Trial courts have discretion in determining when a protective order is appropriate. See Boughton v. Cotter Corp., 65 F.3d 823, 828 (10th Cir.1995) (stating that a trial judge’s grant of a protective order will be reviewed for abuse of discretion). Additionally, “the party seeking a protective order has the burden to demonstrate good cause.” Horizon Holdings, L.L.C. v. Genmar Holdings, Inc., 209 F.R.D. 208, 214 (D.Kan.2002) (citation omitted). The moving party must make “a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16, 101 S.Ct. 2193, 2201, 68 L.Ed.2d 693 (1981) (quotation omitted).
The current version of the Federal Rules of Civil Procedure provide some general guidance in determining what constitutes good cause for granting a protective order. Fed.R.Civ.P. 26(b)(2) provides that
[t]he frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court of it determines that ... (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account
2

Semsroth v. City of Wichita, 239 F.R.D. 630 (2006)
the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
*634 Commentators have opined that this rule “should be used to discourage costly, speculative, duplicative, or unduly burdensome discovery of computer data and systems.” MANUAL FOR COMPLEX LITIGATION (4th) § 11.446.
[3] An amendment to Fed.R.Civ.P. 26(b)(2) will become effective on December 1, 2006, and this amendment was “designed to address issues raised by difficulties in locating, retrieving, and providing discovery of some electronically stored information.” Advisory Committee Note on Amendment to Rule 26(b)(2). Pursuant to amended Rule 26(b)(2)(B),
[a] party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
Therefore, the burden of establishing that the information is not reasonably accessible because of undue burden or cost is on the party responding to the discovery request, in this case the City.
Once it is shown that the source of electronically stored information is not reasonably accessible, the requesting party, here Plaintiffs, may still obtain discovery by showing good cause, considering the limitations of amended Rule 26(b)(2)(C), which balance the costs and potential benefits of the proposed discovery. The amended Rule 26(b)(2)(C)-which is substantially the same as present Rule 26(b)(2)(iii)-provides that
[t]he frequency or extent of use of the discovery methods otherwise permitted under these rules and by

any local rule shall be limited by the court if it determines that: ... (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26(c).
A. DEFENDANT’S CHOICE OF STORAGE MEDIA [4] As a preliminary matter, Plaintiffs argue that the City’s choice of data storage systems and Plaintiffs’ lack of control over such choice require the Court to deny the motion. Plaintiffs cite In re Brand Name Prescription Drugs § Antitrust Litigation for the proposition that Defendants should not be able to shift the costs of production where the costs are the result of the back-up system chosen and implemented by Defendants. Case No. 94-897, 1995 WL 360526, at *1-3 (N.D.Ill.1995). The Court rejects this bright-line argument.
While courts have, in the past, rejected requests for costshifting where the requesting party chose a difficult-toaccess storage media, most courts are now moving toward a more sophisticated approach of considering various factors in deciding whether to shift the costs of electronic discovery. Paul M. Robertson & Lawrence T. Stanley, Jr., Electronic Discovery: a Survey of Relevant Law and Recent Developments, Committee on Pretrial Practice and Discovery, vol. 13, No. 1 at 11 (Winter 2005).
The Court is not aware of any decision since Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y.2003) (Zubulake I), that unequivocally prohibits cost-shifting where the Defendant voluntarily utilized storage technology that is difficult to access or restore. Furthermore, the Court has discretion in determining whether to shift the costs of discovery. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978) (stating, in dicta, that district courts may, in their discretion, condition discovery on the requesting party’s payment of costs); 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, FEDERAL PRACTICE AND PROCEDURE, § 2038 (2d ed.1994) (stating that the “court may order the party seeking discovery to pay the expenses caused thereby though it is not required to do so”) (citations omitted).
3

Semsroth v. City of Wichita, 239 F.R.D. 630 (2006)

*635 The Court is cognizant of the possibility that potential litigants might intentionally retain stored data in an inaccessible media in order to deter discovery in litigation.4 Where, as here, the storage media is reasonably related to the purposes for which the information is retained, the court will not automatically require that party to bear the costs of retrieving the information. Cf. Oppenheimer Fund, 437 U.S. at 359, 98 S.Ct. 2380 (noting that a defendant may be required to bear the costs of information retrieval when it would perform such retrieval in the ordinary course of its business).

4

The Advisory Committee considered the possibility that

the revised Rule 26(b)(2)(B) might encourage

companies to “bury” information in some inaccessible

format in order to keep it from being discovered in

litigation, but noted that this conduct would be subject

to sanctions under both the present and the proposed

rules. Advisory Committee Note on Proposed

Amendment to Rule 26(b)(2) (May 27, 2005, revised

July 25, 2005).

[5] Defendants state, and Plaintiffs do not challenge, that the City’s back-up e-mail information was kept for the sole purpose of disaster restoration. The Advisory Committee Note to the Proposed Amendment to Rule 26(b)(2) acknowledges that certain information “can be located, retrieved, or reviewed only with very substantial effort or expense.” As an example, the Committee identifies information “stored solely for disaster-recovery purposes”-like the information at issue. It is, therefore, apparent that Defendants’ storage choice was not only common, but anticipated by those drafting the amendments to the Federal Rules of Civil Procedure.5 The Court thus finds that back-up tapes were a reasonable storage method for such purpose, and assigns no fault to Defendants for utilizing such method.

5

This is not a case where a party has converted data into

an inaccessible format at a time when it should have

reasonably anticipated litigation and should have

anticipated that the data would be discoverable in such

litigation. Cf. Quinby v. WestLB AG, No. 04-7406-

WHP-HBP, 2006 WL 2597900 at * 9 (S.D.N.Y.,

Sept.5, 2006). In this case, the data was transferred to

back-up tapes on a regular basis and there is no

contention that Defendants intentionally placed the

material in an inaccessible format in order to avoid

production.

B. COST THRESHOLD [6] Plaintiffs also argue that the low cost of compliance in
this case (approximately $2624.95),6 in relation to
compliance costs for electronic discovery in other cases,

makes any cost-shifting analysis totally unnecessary. Again, the Court disagrees with this bright-line argument.

6

This is the future cost to restore and search the back-up

tape and does not consider the past costs the City has

incurred in connection with electronic discovery issues.

See Note 1, supra.

In an early case, the Supreme Court stated that there may be circumstances where costs should not be shifted because the expenses involved are “so insubstantial as not to warrant the effort required to calculate it and shift it to the [requesting party].” Oppenheimer Fund, 437 U.S. at 359, 98 S.Ct. 2380 (considering cost-shifting in the context of a disclosure of information for the purpose of class notification under Fed.R.Civ.P. 23). The Oppenheimer court cited, as an example of such insubstantial costs, the expense of making files available for inspection. Id. (citing In re Nissan Motor Corp. Antitrust Litigation, 552 F.2d 1088 (5th Cir.1977)). After Oppenheimer, and early in the history of electronic discovery, some courts did focus on whether the cost of compliance was “excessive or inordinate,” but generally refused to set out an ironclad formula which would determine what was “undue” within the meaning of the federal rules. See e.g., Bills v. Kennecott Corp., 108 F.R.D. 459, 463-64 (D.Utah 1985) (refusing to require payment of $5,411.25 by plaintiffs-employees to obtain computer records from their employer). Likewise, courts7, commentators8, and the *636 drafters9 of the Federal Rules of Civil Procedure have repeatedly stated that the rules are made intentionally flexible in order to allow courts to consider the relevant factors of each case. “[E]ven a very slight inconvenience may be unreasonable if there is no occasion for the inquiry and it cannot benefit the party making it.” 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, FEDERAL PRACTICE AND PROCEDURE, § 2036 (2d ed.1994). Thus, the Court finds that an analysis is necessary to determine whether the cost and expense of complying with the discovery request would be unduly burdensome to Defendants under the facts of this case.

7

See Seattle Times, Co. v. Rhinehart, 467 U.S. 20, 36,

104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (stating that

Fed.R.Civ.P. 26(c) “confers broad discretion on the

trial court to decide when a protective order is

appropriate and what degree of protection is required”);

F.T.C. v. Shaffner 626 F.2d 32, 38 (7th Cir.1980)

(“What is unduly burdensome depends on the particular

facts of each case and no hard and fast rule can be

applied to resolve the question.”).

8

See 8 Charles Alan Wright, Arthur R. Miller & Richard

L. Marcus, FEDERAL PRACTICE AND

4

Semsroth v. City of Wichita, 239 F.R.D. 630 (2006)
PROCEDURE, § 2036 (2d ed.1994) (stating that, in deciding a motion for protective order, “a court may be as inventive as the necessities of a particular case require in order to achieve the benign purposes of the rule”); Dan Harshman, Rise of the Machines: A Critical Look at the New Electronic Discovery Standards, Business Torts Journal, Summer 2004, at 1, 7 (“The drafters of Rule 26 intended that it be a flexible rule capable of addressing many situations.”).

9

Fed R. Civ. P. 26 Advisory Committees Note, 1970

Amendment, subdivision (b)-Scope of Discovery

(noting that Rule 26 may cover situations “not capable

of governance by precise rule, in which courts must

exercise judgment”).

C. COST-SHIFTING FACTORS The Court has found no Tenth Circuit case dealing with cost-shifting of electronic discovery between parties.10 The current leading case on cost-shifting is Zubulake I, 217 F.R.D. 309 (S.D.N.Y.2003), which has been cited by both parties. See also Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y.2003) (Zubulake III ).

10

The Tenth Circuit has ordered cost-shifting where a

non-party faced a substantial discovery burden to

comply with a subpoena duces tecum. See In re

Coordinated Pretrial Proceedings in Petroleum

Products Antitrust Litigation, 669 F.2d 620, 623-624

(10th Cir.1982) (requiring a requesting party to pay the

costs of complying with its subpoena duces tecum-

$8,782.98, which included the costs of the subpoenaed

non-party’s staff time to search for the requested

records-because the discovery request was for the

benefit of only the requesting party).

In Zubulake I, the court considered whether the plaintiff should bear the cost of complying with her discovery requests relating to the production of e-mails stored on back-up tapes. The defendant estimated that production would cost approximately $175,000.00. Id. at 316. Zubulake I established a two-part test for determining when cost-shifting is appropriate for electronic discovery requests. The first inquiry is whether the requested discovery is unduly burdensome. Id. at 318. The court determined that “whether production of documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or inaccessible format.”11 Id. After finding that some of the information was contained on inaccessible back-up tapes and, therefore, unduly burdensome to produce, the court applied a multi-factor test to determine whether costshifting was appropriate.

11

Back-up tapes are considered an inaccessible format

under Zubulake’s analysis because the data is not

organized for retrieval of individual documents and it is

usually more time-consuming and expensive to restore

the data due to the fact that the data has been

compressed. Id. at 319.

[7] Zubulake I modified the test applied in Rowe Entertainment, Inc. v. The William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y.2002) to create its own test. The Court established seven factors to be considered in descending order of importance: (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production compared to the amount in controversy; (4) the total cost of production compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issues at stake in the litigation; and (7) the relative benefits to the parties of obtaining the information. Zubulake I, 217 F.R.D. at 322. The court noted that the first two factors (comprising the “marginal utility test”) were the most important, the second three factors were the next most important, and the final two factors would rarely make any difference, but could be very important in the few cases to which they would apply. Id. at 323.
[8] The analysis in Zubulake I (and the application of those factors in Zubulake III ) must be considered in connection with the later amendment to Rule 26(b)(2) which will *637 become effective on December 1, 2006. The proposed rule requires a balancing of the costs and potential benefits of discovery, and the Advisory Committee identified several items to be considered, including:
(1) the specificity of the discovery request;
(2) the quantity of information available from other and more easily accessed sources;
(3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources;
(4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources;
(5) predictions as to the importance and usefulness of the further information;
(6) the importance of the issues at stake in the litigation; and

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Semsroth v. City of Wichita, 239 F.R.D. 630 (2006)
(7) the parties’ resources.
Advisory Committee Notes to Rule 26(b)(2). The similarity between these considerations and the factors in Zubulake I is readily apparent. The court finds all of these factors to be instructive. The Court agrees, however, that these factors should not be treated simply as a check-list which is mechanically applied to every case and where the decision to shift costs is made solely on the basis of how many factors are present in a particular case. See e.g., Zubulake I, 217 F.R.D. at 322-23; Zubulake III, 216 F.R.D. at 289.

D. INACCESSIBLE MEDIUM AND UNDUE BURDEN Here, as in Zubulake, the data sought is on an medium which can be classified as “inaccessible,” i.e., back-up tapes, which must be restored before they can be searched for relevant data. This suggests that the process of producing such data could constitute an undue burden on Defendant. See Zubulake, 217 F.R.D. at 318 (“whether production of documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or inaccessible format.”). However, the Amendment to Rule 26(b)(2)(B) makes clear that any inaccessibility must be “because of undue burden or cost.” This brings into play Plaintiffs’ argument that the costs in this case are not so significant as to cause an undue burden on the City.
The City states, however, that it has already spent over $20,000 for work prior to May 17, 2005, in connection with electronic discovery requests from Plaintiffs, including the purchase of back-up tapes and two tape drives. (Doc. 121, Norman Aff. ¶ 3; Doc. 63, Norman Aff. ¶¶ 3-4). The City argues that the total costs-the City’s past expenditures plus any future costs to restore and search the e-mail-are substantial and burdensome. (Doc. 121 at 1-2). For purposes of cost-shifting in this case, the court believes that it should consider not only the future costs to either (1) acquire the search hardware (Discovery Attender), or (2) to conduct a search on the .pst files using Microsoft Outlook, but it should also consider the costs which the City has already incurred that were directly related to restoring or searching e-mails.12

12

The City also discusses the additional time that will be

required to review any e-mails that are retrieved as a

result of any search and to remove any protected

material such as information concerning criminal

investigations or crime victims. (Doc. 121 at 3). That

time, however, is not subject to cost-shifting. See

Zubulake III, 216 F.R.D. at 290 (the responding party

should always bear the cost of reviewing and producing

electronic data once it has been converted to an

accessible form).

The court has reviewed the itemization of prior work done by the City’s IT/IS Department which was attached to Mr. Norman’s earlier affidavit. (Doc. 63, Norman Aff. ¶ 3). It appears that much of the early work in October and November, 2004, was directed to issues concerning the back-up of the City’s TSM system which was the subject of an earlier motion by the City. See Defendants’ Motion for Protective Order, October 8, 2004, Doc. 24. In that motion, the City was concerned with Plaintiffs’ demand for preservation of electronic data and the effect any such order would have on the City’s automated back-up of the TSM system. At that time, the court was advised that the TSM system was a disaster retrieval system that was separate from the City’s e-mail system and that the City had already created back-up tapes of the City’s e-mail system. (Doc. 27 at 4, n. 1). Therefore it appears to the court *638 that the acquisition of the two new tape drives and additional back-up tapes, see Doc. 63, Norman Aff. ¶ 4, had nothing to do with preservation of the City’s e-mail system. The court does note that the City staff did spend time creating .pst files for certain listed employees and supervisors and researching issues concerning the Exchange 5.5 server restoration, all of which appear to be directly related to the e-mail search issue. The court can identify such work done on December 2, 3, 6 and 8, 2004, and on March 7, 9 and 11, 2005, which appears to fall in this category. See Doc. 63, Norman Aff. ¶ 3 and attached Consulting Time Report. The total cost reported for those specific activities is approximately $1,150.

Therefore, for purposes of considering the cost to the City of restoring and searching the single e-mail back-up tape, it appears that the total costs would not exceed $3,374.95 (prior staff time of $1,150 and acquisition of Discovery Attender and future staff time to restore and search emails of $2,624.95).13 While this pales in comparison to the estimated costs in Zubulake III (approximately $166,000 to restore and search 94 back-up tapes)14 and Quinby ($226,266.60 to restore and search six former employees’ e-mails on an expedited basis),15 it is not an insignificant cost.

13

The court realizes that adding these two specific items

is not wholly consistent. The City chose to copy the

117 e-mail boxes onto .pst files some time ago. Those

.pst files will only be used if the City chooses to search

the e-mails using Microsoft Outlook. In that case, the

total estimated costs would be $3,100 (the prior staff

time of $1,150 to copy the files to .pst format and the

search time of $1,950). The alternative of using

Discovery Attender will cost $2,624.95.

14

216 F.R.D. at 282-283. The estimated expenses in this

case are less than the expenses incurred in restoring and

6

Semsroth v. City of Wichita, 239 F.R.D. 630 (2006)
searching a sample of five back-up tapes in Zubulake III, which cost $19,003.43. Id.

15

2006 WL 2597900 at * 14, n. 21.

While it is somewhat questionable whether these total costs make the e-mails stored on back-up tape “not reasonably accessible because of undue burden or cost,” as required by the proposed amendment to Rule 26(b)(2)(B), the court will proceed to analyze the costshifting issue based upon the factors identified in Zubulake I and the amended Rule 26(b)(2)(C).

E. APPLICATION OF COST SHIFTING FACTORS IN THIS CASE [9] The ultimate question is whether the burden of complying with the discovery request outweighs the likely benefit of the proposed discovery. Zubulake I, 217 F.R.D. at 322-23 (“Put another way, ‘how important is the sought-after evidence in comparison to the cost of production?’ ”). The factors to be considered should be directed toward, and subservient to, this ultimate question.
Thus, the first inquiry should be to ask what are the benefits to be derived from the discovery, particularly: (1) what is the likelihood that the discovery will uncover relevant information, and (2) what is the potential value of that information in resolving the issues in the case. Then, these benefits should be compared to the cost burden resulting from the discovery, again asking particularly: (3) the total cost of the production compared to the amount in controversy, and (4) the total cost of production compared to the resources available to each party. The court believes that these factors should all be given such weight as may be justified by the facts of the individual case as they are all critical to the ultimate question of whether the costs outweigh the likely benefits of production.
The cost for the anticipated restoration and search of the e-mail back-up tape is well established in the record and is not disputed. Neither party has speculated, however, on the possible recovery that these four named plaintiffs might receive were they to prevail in their claims. The court is unable on the record to make any such determination itself. However, since the case now deals only with these four named Plaintiffs and not with a class, any projected recovery would appear to be far less than Plaintiffs might have initially anticipated when the case was filed. Even so, the costs of restoring and searching the e-mail back-up tape does not seem excessive when compared to the possible amount in controversy.

On the other hand, any cost-shifting to Plaintiffs will necessarily be borne now by *639 only the four Plaintiffs, and not spread among a larger number of class members. The parties also failed to present any evidence as to the relative financial position of the parties, but the court can properly assume that the four Plaintiffs have significantly less financial capability to pay these costs than does the City. However, it should also be considered that as a governmental entity, the City’s ability to shoulder significant discovery costs is not comparable to the investment banking organizations in both Zubulake and Quinby,16 and the source of any such monies comes from public rather than private sources. Considering all of the cost factors, the court believes that they weigh slightly against any cost-shifting.

16

The defendant in Quinby had assets in excess of 265

billion Euros, and USB Warburg had net profits for the

third quarter of 2002 alone of over $700 million.

The more problematic matter involves the two “benefit” factors.17 Discovery in the case is now concluded except for the unresolved issue concerning the e-mail back-up tape. Plaintiffs note in their Supplemental Memorandum that some e-mails have been produced in discovery and have been discussed in depositions. (Doc. 117 at 3-5). However, the deposition excerpts cited by Plaintiffs do not appear to provide any direct evidence of gender discrimination or retaliation against Plaintiffs. While the court realizes that a party cannot predict with certainty that a proposed discovery method will lead to the discovery of important evidence, the more likely it is that the back-up tape contains important, relevant evidence to Plaintiffs’ claim, the fairer it is to require the City to search at its own expense. Cf. Zubulake I, 217 F.R.D. at 323 (citing McPeek v. Ashcroft, 202 F.R.D. 31, 34 (D.D.C.2001)).

17

These factors are similar to the ones identified by the

Advisory Committee concerning the likelihood of

finding relevant, responsive information and

predictions as to the importance and usefulness of the

further information. See Advisory Committee Notes to

Amendment of Rule 26(b)(2).

In Zubulake III, even though several e-mails had been produced as a result of a sample restoration and search of only a few back-up tapes, the court concluded that the plaintiff had not been able to show that there was indispensable evidence on the back-up tapes, and the success of the full search was somewhat speculative. 216 F.R.D. at 289. The same situation appears to be present in this case. While Plaintiff has identified testimony that there have been some e-mails seen by a Plaintiff that she indicated “would probably upset a female officer,” Doc.
7

Semsroth v. City of Wichita, 239 F.R.D. 630 (2006)

117 at 4, this is not a strong indication that a search of the e-mails of 117 supervisors (many of whom were not the direct supervisors of any of the four Plaintiffs)18 would likely produce direct evidence of gender discrimination or retaliation. The portions of the Plaintiffs’ depositions provided by Defendants reinforces this conclusion. See Doc. 121, Attached Deposition Excerpts. Therefore, the benefit factors weigh in favor of cost-shifting.

18

Plaintiffs here are claiming a pattern and practice of

gender discrimination in the Wichita Police Department

and thus seek broad discovery from supervisors other

than those directly over the four named Plaintiffs.

While Plaintiffs may be entitled to seek evidence

concerning the actions of other supervisors, see e.g.,

Mendelsohn v. Sprint/United Management Co., 466

F.3d 1223, 1227-29 (10th Cir.2006) (refusing to extend

the “same supervisor” rule to cases where a plaintiff

claims to be the victim of company-wide discrimination

rather than allegations of discriminatory disciplinary

action), the likelihood that such a broad search will lead

to direct evidence of discrimination is not particularly

strong. Moreover, many of Plaintiffs’ claims involve

alleged retaliation against these four Plaintiffs as a

result of their filing of this case. See e.g., Doc. 118 at 9,

n. 4. As to those claims, discovery as to other

supervisors would not appear to be appropriate since it

would seem that any retaliation would come from the

Plaintiffs’ direct supervisory chain.

Most of the other factors outlined in either Zubulake or the amendments to Rule 26(b)(2), are not particularly relevant to the analysis in this case. For example, the Court does agree with Zubulake that while other factors such as the importance of the issues at stake in the litigation and the relative benefits to the parties of obtaining the information rarely may be relevant, they may be vital to the analysis under the certain circumstances. Thus, highly important litigation19 may require greater latitude in cost- *640 shifting than more isolated cases, and cases where there is a definite benefit to the responding party may weigh against cost-shifting.20

19

The Court agrees with the Zubulake court’s general

statement of the types of cases that might involve

particularly important issues. While all litigation is

important to determining and preserving the individual

rights of the parties involved, on rare occasions,

litigation will arise that is important on a much broader

scale. Examples of such litigation include cases with

the potential for broad public impact such as toxic tort

class actions, environmental actions, “impact” or social

reform litigation, cases involving criminal conduct, and

cases involving important legal or constitutional

questions. 217 F.R.D. at 321. In those cases, the costs

of discovery must be weighed in relation to the social

impact of the outcome of the case, not just the

economic impact to the litigants involved. See also,

Quinby v. WestLB AG, No. 04-7406-WHP-HBP, 2006

WL 2597900 at *9 (S.D.N.Y., Sept.5, 2006).

20

A court may, among other circumstances, find benefit

to the responding party where it would restore the

information for its own discovery purposes or in its

normal course of business. There appear to be no

special circumstances in this case that would indicate

that the City would benefit from the restoration of the

back-up tape.

While this obviously is an important case to the four Plaintiffs, the court is inclined to agree with Zubulake that a workplace discrimination claim probably is not the type of case that warrants special consideration as to costshifting. Interestingly, both Zubulake and Quinby, like the present case, involve claims of gender discrimination in the workplace. Although both courts acknowledge that discrimination is an important problem, neither considered such a case to be unique or novel in nature, and therefore gave little or no consideration to this factor. Zubulake III, 216 F.R.D. at 289; Quinby, 2006 WL 2597900 at * 15. As the court stated in Zubulake III,
[i]f I were to consider the issues in this discrimination case sufficiently important to weigh in the costshifting analysis, then this factor would be virtually meaningless. Accordingly, this factor is neutral.
216 F.R.D. at 289. Even though suits alleging discrimination in the workplace of a public employer may seem more like “social reform litigation” than suits involving only private employers, the court still believes that it would be unwise to treat this case as one requiring some special consideration for purposes of cost-shifting.

CONCLUSION
[10] After consideration of the briefs of the parties, and considering the specific circumstances of this case, the court cannot conclude that cost to the City of restoring and searching the single e-mail back-up tape of July 23, 2004, is such as to render that back-up tape “not reasonably accessible because of undue burden or cost.” See Amendment to Rule 26(b)(2)(B). The court is not unsympathetic to the City’s argument that it has already incurred significant costs and expenses in order to satisfy other electronic discovery demands of Plaintiffs in this case; however, the majority of those expenses do not directly relate to the restoration and search of the back-up tape which is the issue now before the court and therefore
8

Semsroth v. City of Wichita, 239 F.R.D. 630 (2006)

should not be considered. Cf. Zubulake III, 216 F.R.D. at 290 (as a general rule, where cost-shifting is appropriate, only the costs of restoration and searching should be shifted). Because the e-mails are reasonably accessible without undue burden or cost, the cost-shifting factors in the amendment to Rule 26(b)(2)(C) do not come into play. Cf, Zubulake I, 217 F.R.D. at 318 (cost-shifting should only be considered when electronic discovery imposes an “undue burden or expense” on the responding party).
Had the direct cost and expense of restoring and searching the back-up tape been larger in this case, as may often be the case with use of back-up tapes, the application of the cost-shifting factors outlined in the amendments to Rule 26(b)(2)(C) and Zubulake I would have easily supported a shifting of some of the costs to the Plaintiffs. This is particularly true since it appears to the court that the likelihood that the search of the July 23, 2004, back-up tape would result in the discovery of significant important evidence to support Plaintiffs’ discrimination claims in this case is somewhat questionable and speculative. In that regard, the court does note that Defendants apparently have not attempted to view any of the e-mails on the back-up tape even though e-mails for 117 mailboxes have already been transferred to .pst format and could have been searched with Microsoft Outlook search features. Thus, Defendants, like Plaintiffs, are merely *641 speculating about the results of any e-mail search.21

21

The court notes that as part of their negotiations

concerning the search of the e-mails, the parties could

have agreed to run a search of a small “sample” of the

117 supervisors’ e-mails by searching the .pst files

(which had already been copied by the City) with the

Microsoft Outlook search feature. Use of such a

sampling procedure might have assisted the parties and

the court in determining the likelihood that the search

would disclose important relevant information. See e.g.,

Zubulake I, 217 F.R.D. at 323-24; Zubulake III, 216

F.R.D. at 282-83.

While the court has concluded that cost-shifting is not warranted in this case, the court still retains the authority under Fed.R.Civ.P. 26(b)(2) to limit the extent of proposed discovery where the expense outweighs its likely benefit. After considering all the fact of this case, the court concludes that the scope of the search of the emails should be limited in two respects.
First, the court notes in this case the relative cost to restore and search the requested e-mails is much less because Plaintiffs have agreed that only one back-up tape for July 23, 2004, should be searched. On the other hand, Plaintiffs’ designation of the seventeen words to be used for searches22 as to each of the 117 supervisors’ e-mail

boxes appears to be too broad in scope. The court agrees with Defendants that several of the words are common enough that they might well result in identification of a significant volume of irrelevant e-mail. Others are words that do not appear to be reasonably calculated to lead to the discovery of relevant evidence in this case. Accordingly, the Court finds that the following words should not be used in any e-mail search: Sara, Heather, Female, Ho, Kim and Dyke.

22

See Doc. 121 at 3-4.

Second, while Plaintiffs may be entitled to seek discovery of an alleged department-wide gender bias from supervisors other than those who directly supervise the four Plaintiffs,23 the court believes that the cost of searching 117 mailboxes exceeds the likely benefit of such a search. Accordingly, any e-mail search shall be limited to on 50 of the 117 identified mailboxes. Plaintiffs may select the 50 mailboxes to be searched.

23

See Note 18, supra.

Because the court has pared down the both the number of words to be used in any search as well as the number of mailboxes to be searched, this will reduce the expenses forecast by Defendants, particularly if they choose to search the .pst files which have already been copied for all 117 supervisors’ e-mail boxes. This will not, however, significantly reduce the cost if the City elects to purchase the Discovery Attender software since it searches the entire e-mail back-up file in one operation. Because it has not ordered any shifting of costs to Plaintiffs, the court believes that Defendants should retain the right to decide whether to purchase and install the Discovery Attender software or to conduct searches of the .pst files using Microsoft Outlook.
IT IS THEREFORE ORDERED that Defendants’ motion for Plaintiffs to pay all or part of the costs relating to discovery of Defendants’ electronic mail (Doc. 58), is hereby DENIED.
IT IS FURTHER ORDERED that the search of Defendants’ electronic mail shall be limited in scope as set out in this Memorandum and Order.

Parallel Citations 105 Fair Empl.Prac.Cas. (BNA) 988, 27 A.L.R.6th 705
	  
9

Semsroth v. City of Wichita, 239 F.R.D. 630 (2006) 10

 
 Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2006)
2006 WL 2570557 Only the Westlaw citation is currently available.
United States District Court, D. Kansas.
Greta SEMSROTH, et al., Plaintiffs, v.
CITY OF WICHITA, et al., Defendants.
No. 04–1245–MLB. | Sept. 5, 2006.
Attorneys and Law Firms
Lawrence W. Williamson, Jr., Shores, Williamson & Ohaebosim, LLC, Wichita, KS, for Plaintiffs.
Kelly J. Rundell, City of Wichita, Kansas–Law Department, Wichita, KS, for Defendants.
Opinion
MEMORANDUM AND ORDER
DONALD W. BOSTWICK, Magistrate Judge.
*1 Now before the Court is Plaintiffs’ Motion for Leave to Amend Complaint. (Doc. 106.) Defendants filed a response opposing Plaintiffs’ Motion (Doc. 107), and Plaintiffs filed a reply (Doc. 108). The Court, having carefully reviewed the briefs and attachments, is prepared to rule.
BACKGROUND
Plaintiffs, female officers of the City of Wichita’s (“City”) police department (“Department”), have brought claims against the City and Police Chief Norman Williams (“Williams”) for sexual harassment, hostile work environment, and gender discrimination in violation of Title VII, violations of the Equal Pay Act, and violations of equal protection. The following is a brief chronology of the events leading up to the filing of the present motion to amend.
Plaintiffs Semsroth and Voyles filed their EEOC charges of Title VII gender discrimination in March 2004. (Doc. 85, Exhs.1, 3.) The various charges alleged ongoing violations, but “failed to allege that the problem affected anyone other than the particular claimant.” (Doc. 92 at 4.) Plaintiff Semsroth received her right-to-sue letter from the EEOC on May 24, 2004 (Doc. 85, Exh. 1), and Voyles received hers on June 29, 2004 (Id. at Exh. 3).
Plaintiffs filed their initial Class Action Complaint in this Court on July 28, 2004 (Doc. 1), almost two full years before the present motion to amend was filed. The initial Complaint was brought against the City of Wichita, City of Wichita Police Department, and Chief Norman Williams individually and in his official capacity, and it contained the following claims: gender discrimination under Title VII and 42 U.S.C. § 1981; violations of the Equal Pay Act and Kansas Equal Pay Laws; violation of due process; denial of equal protection; violations of the right to privacy and/or association; conspiracy; intentional infliction of emotional distress; negligent training, supervision, and discipline; and failure to train, supervise, and discipline. (Id.)
Defendants filed motions to dismiss seeking a dismissal of Defendant City of Wichita Police Department (Doc. 7), a dismissal of the state law claims against all Defendants (Doc. 14), and a dismissal of the official capacity claims and certain causes of action against Defendant Williams (Docs.9, 16). On October 25, 2004, all of these Motions to Dismiss were granted. (Doc. 31.) The next day, October 26, 2004, the undersigned magistrate judge held a conference with counsel to set
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deadlines for discovery matters and issued a Scheduling Order. (Doc. 32.) Another status conference was held on December 6, 2004, and the Court entered another Order concerning scheduling and discovery matters. (Doc. 39.) A third status conference was held on January 18, 2005, and the Court entered another Order dealing with resolution of discovery disputes. (Doc. 46.) This Order also noted that Plaintiffs had indicated a desire to amend their initial complaint, and it included a deadline of February 1, 2005, for the filing of any motions to amend. (Doc. 46 at ¶ I(d).)
*2 Plaintiffs filed their first Motion to Amend Complaint on January 31, 2005. (Doc. 47.) By Order dated March 22, 2005 (Doc. 51), Plaintiffs’ motion was granted in part and denied in part. Plaintiffs’ First Amended Class Action Complaint was then filed on March 31, 2005. (Doc. 53.) It contained the following claims: gender discrimination under Title VII and 42 U.S.C. § 1981; violations of the Equal Pay Act; denial of equal protection pursuant to 42 U.S.C. § 1983; and conspiracy in violation of 42 U.S.C. § 1985. (Id.) A summary of Plaintiffs’ present claims as contained in the First Amended Class Action Complaint is contained in the District Court’s Memorandum and Order denying Plaintiffs’ Motion for Class Certification (Doc. 86), and is incorporated herein by reference.
After receiving two extensions (Docs.52, 67), Plaintiffs filed a Motion to Certify Class and supporting memorandum on July 7, 2005 (Docs.70, 71.) After full briefing (see Docs. 82, 85), the District Court denied the Motion to Certify by Order dated September 29, 2005 (Doc. 86), holding that it did not have jurisdiction over Plaintiffs’ class action claims because Plaintiffs failed to exhaust their administrative remedies with the EEOC by failing to include class action allegations in their administrative filings.
The next day, September 30, 2005, Plaintiffs filed a Motion for Reconsideration (Doc. 87) and a renewed Motion to Certify Class (Doc. 88). By Order dated October 21, 2005 (Doc. 92), the District Court denied Plaintiffs’ Motion for Reconsideration and reiterated that it did not have jurisdiction over the proposed Title VII class action. The District Court stated in no uncertain terms that it
would be contrary to the letter and spirit of Fed.R.Civ.P. 1 to permit, at this late date, class action certification of any claims by any plaintiff under any theory. The court will not permit this case to proceed by a timetable dictated by plaintiffs’ attempts to correct failures to bring their claims in a timely manner.
(Doc. 92 at n. 1.) (Emphasis in original.)
Plaintiffs subsequently filed the present motion on June 23, 2006, requesting leave to again amend their complaint. (Doc. 106.) Plaintiffs’ proposed Second Amended Class Action Complaint (Doc. 106, Exh. 6), contains the following causes of action: gender discrimination in violation of Title VII; violations of the Equal Pay Act; and denial of equal protection pursuant to 42 U.S.C. § 1983. According to Plaintiffs’ motion, the proposed Amended Complaint
incorporated facts learned through the course of discovery and eliminates other facts that were clarified during discovery. Additionally, plaintiffs’ Amended Complaint properly places the class allegations before the court as the plaintiffs, and each of them, have exhausted class claims in front of the EEOC.
(Doc. 106 at ¶ 2.) Included in the proposed Second Amended Class Action Complaint are factual allegations concerning a statistical analysis, apparently done by Plaintiffs’ expert witness,1 relating to the purported disparate treatment and disparate impact of the City’s policies regarding hiring, promotion, compensation, and discipline of female officers. (Id., Exh. 6 at ¶¶ 52–59.)
*3 Defendants filed a response on June 28, 2006. (Doc. 107.) Defendants argued that Plaintiffs’ motion should be denied because it failed to comply with local rules regarding motions to amend, it did not establish good cause for modifying the Scheduling Order, it did not establish good cause for Plaintiffs’ delay in seeking to amend the Complaint, Defendants would be prejudiced by the amendment, and the proposed amendment is futile. (See generally, Id.)
Plaintiffs replied on July 11, 2006, contending that they “should not be punished for proceeding under a good faith basis that the EEOC charges were sufficient to place the defendant on notice of the class allegations.” (Doc. 108, at 2.) Plaintiffs continued that they “did not have any deficiency to cure until the District Court held that it did not have jurisdiction over plaintiffs’ claims.” (Id.) Plaintiffs also contend that the proposed amendment is not futile, Defendants would not be unduly prejudiced, and that their motion was procedurally correct.2
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DISCUSSION
A. “Good Cause” Standard. Fed.R.Civ.P. 15(a) provides that leave to amend shall be freely given when justice so requires. In the absence of any apparent or declared reason, such as undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment, leave to amend should, as the rules require, be freely given. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir.1993).
However, in this case, the Court has previously set a deadline for filing motions to amend in a prior scheduling order (Doc. 46 at ¶ I(d)), and that date has not been extended by the Court. Therefore, the deadline for filing motions to amend—February 1, 2005—expired approximately a year and four months before Plaintiffs’ present motion to amend was filed. Accordingly, the Court will treat Plaintiffs’ motion as a motion to amend the Scheduling Order to allow a late filing of an amended complaint. See Denmon v. Runyon, 151 F.R.D. 404, 407 (D.Kan.1993) (stating that a motion to amend filed after the deadline established in the scheduling order must meet the standard of “good cause” under Fed.R.Civ.P. 16(b)).
Amendments to the Scheduling Order are not freely given. Fed.R.Civ.P. 16(b) provides that the Scheduling Order “shall not be modified except upon a showing of good cause and by leave of the ... magistrate judge.” To establish “good cause” the moving party must show that the scheduling order’s deadline could not have been met with diligence. Denmon, 151 F.R.D. at 407. Lack of prejudice to the nonmovant does not establish good cause. Deghand v. Wal–Mart Stores, Inc., 904 F.Supp. 1218, 1220 (D.Kan.1995).
The present motion must fail, in the Court’s opinion, because Plaintiffs have failed to carry their burden of establishing good cause for the amendment of the scheduling order at this late date to allow another amendment of their complaint. Even applying only the standards in Rule 15, the Court would deny the motion to amend because of undue delay and undue prejudice to Defendants.3
B. Undue Delay. *4 Plaintiffs contend their proposed amended complaint “incorporates facts learned through the course of discovery and eliminates other facts that were clarified during discovery.” (Doc. 106 at 2.) While this may be true, Plaintiffs have not explained why the elimination or clarification of these facts was necessary or how it bears on the issue of good cause.
Plaintiffs are not required to place every new factual allegation learned through discovery before the Court in the form of an amended complaint.4 Further, they are not required to amend the complaint to “eliminate” or “clarify” every fact alleged to conform with information learned through the course of discovery. If they wish “to eliminate” a claim (such as their § 1985 claim), they can do so by a motion to dismiss that claim, or they can eliminate the claim from any proposed pretrial order. Furthermore, the pretrial conference provides sufficient opportunity for Plaintiffs “to clarify” their factual contentions. See Fed.R.Civ.P. 16, D. Kan. Local Rule 16.2.
It is apparent to the Court that Plaintiffs’ sole motivating reason for filing the present motion to amend is to cure the jurisdictional deficiencies of their prior EEOC filings and to re-assert their prior class action claims. (See generally Docs. 86 and 92 for District Court’s discussion of this issue.) Plaintiffs have not, however, established good cause for failing to do so in a more timely manner.
Plaintiffs contend that “they should not be punished for proceeding under a good faith basis that the EEOC charges were sufficient to place defendant[s] on notice of the class allegations. Plaintiffs did not have any deficiency to cure until the District Court held that it did not have jurisdiction over plaintiffs’ claims .” (Doc. 108 at 2.) The Court cannot agree with this reasoning. Plaintiffs’ counsel are, or should be, familiar with the administrative prerequisites of filing a federal employment discrimination claim. Any deficiency in Plaintiffs’ previous class action complaints existed as a result of deficiencies in the filing of the administrative charges, and those deficiencies occurred long before the District Court brought it to the attention of counsel when it denied the motion to certify a class.
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In addition, Defendants’ Answers to Plaintiffs’ Complaint and First Amended Complaint contained the affirmative defense that Plaintiffs had failed to exhaust their administrative remedies. (Doc. 18 at ¶ 60, Doc. 19 at ¶ 47, Doc. 55 at ¶ 57, Doc. 56 at ¶ 35.) Defendants’ original Answers were filed on September 2, 2004—approximately five months before the Court’s deadline to amend the pleadings. As such, Plaintiffs were clearly placed on notice of this administrative deficiency. Plaintiffs could have addressed this issue in the first motion for leave to amend which they filed within the deadlines set by the Court, but they did not. They have failed to establish that the deadline “could not have been met with diligence,” Denmon v. Runyon, 151 F.R.D. 404, 407 (D.Kan.1993), or, at a minimum, in a more timely manner. For this reason, the Court finds Plaintiffs’ delay in bringing the proposed amendments to be undue.
C. Undue Prejudice. *5 Defendants also argue that they would suffer undue prejudice if Plaintiffs are allowed to file the proposed Second Amended Class Action Complaint. The Court notes, however, that even if there were no prejudice to Defendants, this fact alone does not establish good cause for filing a motion to amend after the Court-imposed deadline. See Deghand v. Wal–Mart Stores, Inc., 904 F.Supp. at 1220. However, in this case the Court is inclined to agree that allowing this late amendment would result in prejudice to Defendants.
Plaintiffs admit significant discovery has occurred. (Doc. 106 at 2.) Most importantly, defense counsel has completed the depositions of Plaintiffs. (Id.) Defendants also have served written discovery requests on Plaintiffs. (Id.) Plaintiffs’ proposed Second Amended Complaint contains new factual allegations by all Plaintiffs and an entirely new cause of action by Plaintiff Plush. Under these circumstances, the Court agrees with Defendants’ concerns that they would have to reopen the depositions of all of the Plaintiffs and engage in other forms of discovery. (Doc. 107 at 5.) At this stage in the proceedings—two years after the filing of the initial Complaint and after the completion of significant discovery—this would be the epitome of undue prejudice to Defendants.
Finally, the Court has now issued a Final Scheduling Order in this case (Doc. 110), which sets a discovery cutoff of October 31, 2006. Based upon prior discovery in this case, the Court does not believe that this deadline could be met if the Court were to allow the amendment now sought by Plaintiffs. Therefor, Plaintiffs’ motion is DENIED.

CONCLUSION
Plaintiffs have failed to carry their burden of establishing good cause for the proposed amendment. They have not provided a sufficient good faith explanation to the Court for the undue delay in bringing their second Motion for Leave to Amend Complaint. (Doc 106.) Also, allowing the amendment at this stage of the proceedings would cause undue prejudice to Defendants, who have dedicated significant time, energy, and expense to discovery in this matter—much of which would need to be reopened if Plaintiffs were allowed to make additional factual allegations and, in the case of one Plaintiff, bring an additional claim.
In short, the arguments and evidence submitted by Plaintiffs in support of their motion are insufficient to persuade this Court to ignore the District Court’s admonition that it “would be contrary to the letter and spirit of Fed.R.Civ.P. 1 to permit, at this late date, class action certification of any claims by any plaintiff under any theory.” Doc. 92 at n. 1.) (Emphasis in original.) The proposed amendment, therefore, must be DENIED.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Leave to Amend Complaint (Doc. 106) is DENIED.

Footnotes

1

The proposed Second Amended Class Action Complaint identifies a Dr. Robert Bardwell as the person who analyzed data from the

Wichita Police Department, and refers to an Exhibit A. (Doc. 106, Exh. 6 at ¶ 48.) No Exhibit A was included with the proposed

Second Amended Class Action Complaint filed with the motion to amend.

2

The procedural issue raised by Defendants is the allegation that Plaintiffs failed to include in their motion “a concise statement of

the amendment.” See Doc. 107 at 1 (citing D.Kan. Rule 15.1). Admittedly, Plaintiffs’ description of the substance of the proposed

amendment is rather generic in nature. This is somewhat troubling because the proposed amended complaint is lengthy (31 pages

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and 113 substantive paragraphs), thus requiring the Court to spend an inordinate amount of time determining the precise changes that were being made by the proposed amended pleading. However, at the Court’s request, Plaintiffs’ counsel provided a detailed computer comparison of the First Amended Class Action Complaint and the proposed Second Amended Class Action Complaint. Therefore, the Court will not decide this motion on procedural grounds.

3

Because the Court has determined Plaintiffs’ proposed amendment was unduly delayed and would cause undue prejudice to

Defendant, any discussion by the Court regarding futility of the amendment would be superfluous.

4

The “new” facts referred to by Plaintiffs relate to specific instances of retaliation each of the four Plaintiffs claim to have endured

after, and as a result of, the filing of this lawsuit. See Doc. 106, Exh. 6 at ¶¶ 73–74 (Semsroth’s events in July and August 2005); ¶¶

84 (Warehime’s events in June 2005); ¶¶ 90–91 (Voyles’ events in December 2004 and June 2005); and ¶ 98 (Plush’s events in

May through July 2005). These are more accurately described as “supplemental” in nature since all occurred after the filing of this

action. See e.g., Fed.R.Civ.P. 15(d). The Court notes, however, that these supplemental claims of retaliation are unique to these

four named Plaintiffs because that retaliation is claimed to be the result of the filing of this action. No female police officer other

than the named Plaintiffs would have a similar retaliation claim; thus, such claims are irrelevant to the proposed class. As to the

“new” statistical allegations, the Court does not recall an instance where a party has sought to amend in order to clarify a complaint

by attaching a copy of their expert’s report or quoting from such a report at length. None of these “new” allegations are a sufficient

reason for filing another amended complaint.

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 Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2007)
2007 WL 1246223 United States District Court,
D. Kansas.
Greta SEMSROTH, et al., Plaintiffs, v.
CITY OF WICHITA, et al., Defendants.
Civil Action No. 04–1245–MLB. | April 27, 2007.
Attorneys and Law Firms
Lawrence W. Williamson, Jr., Shores, Williamson & Ohaebosim, LLC, Wichita, KS, for Plaintiffs.
Kelly J. Rundell, City of Wichita, Kansas–Law Department, Wichita, KS, for Defendants.
Opinion
MEMORANDUM AND ORDER
MONTI L. BELOT, United States District Judge.
*1 This matter comes before the court on defendants City of Wichita (“City”) and Chief Norman Williams’ (“Chief Williams’ ”) motion for summary judgment. (Doc. 154.) The motion has been fully briefed and is ripe for decision. (Docs.155, 162, 166, 1691, 172.) The motion is GRANTED for the reasons stated herein.
Prior to filing the motion for summary judgment now before the court, defendants also filed motions to strike plaintiffs’ two expert witnesses. (Docs. 137, 138, 139, 140, 144, 150 151.) Because of the court’s ruling on the motion for summary judgment, the motions to strike plaintiffs’ expert witnesses are now moot.
This employment discrimination case was filed as a class action on July 28, 2004. (Doc. 1.) The case has undergone significant manipulations since its original filing. In October 2004, the court granted defendants’ motion to dismiss: 1) claims against Chief Williams in his official capacity; 2) claims against the Wichita Police Department; 3) plaintiffs’ claim of deprivation of their liberty interest in reputation; and 4) all state tort claims. (Doc. 31.) In March 2005, plaintiffs amended their complaint to drop claims brought under Kansas’ Equal Pay Act and § 1983 for right to privacy/association violations. (Docs.51, 53.)
In September 2005, the court denied plaintiffs’ motion for class certification, finding that a class claim had not been exhausted. (Doc. 86.) As a result, plaintiff Plush’s Title VII claims were dismissed for failure to exhaust, in October 2005. (Doc. 92.) In September 2006, plaintiffs were denied leave to file a second amended complaint that would have alleged purportedly exhausted class claims and retaliation claims. (Doc. 118.) After this denial, plaintiffs subsequently filed the proposed second amended complaint in another court within this district. See Semsroth, et al. v. City of Wichita, et al., No. 06–02376–KHV–DJW (filed Sept. 7, 2006).
Finally, in January 2007, the court filed its pretrial order. (Doc. 142.) The pretrial order states three claims: 1) a violation of Title VII, 42 U.S.C. § 2000e, et seq., brought by plaintiffs Semsroth, Voyles and Warehime against the City (alleging disparate treatment, hostile work environment, retaliation, a pattern and practice of disparate treatment, and disparate impact); 2) a violation of 42 U.S.C. § 1983 brought by all plaintiffs against Chief Williams in his personal capacity; and 3) a violation of 42 U.S.C. § 1985 brought by all plaintiffs against Chief Williams. (Doc. 142 at 31.) In their response to defendants motion for summary judgment, plaintiffs abandon their claim brought pursuant to § 1985. (Doc. 162 at 34 n. 9.) Therefore, only the three plaintiffs’ Title VII claims against the City and the four plaintiffs’ § 1983 claims against Chief Williams remain. The City and Chief Williams move for summary judgment on all claims. (Doc. 154 at 2.)
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Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2007)
I. MOTION FOR SUMMARY JUDGMENT STANDARDS The usual and primary purpose of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Federal Rule of Civil Procedure 56(c) directs the entry of summary judgment in favor of a party who “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” An issue is “genuine” if sufficient evidence exists on each side “so that a rational trier of fact could resolve the issue either way” and “[a] n issue is ‘material’ if under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citations omitted); see also Adams v. Am. Guarantee & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler). The mere existence of some factual dispute will not defeat an otherwise properly supported motion for summary judgment because the factual dispute must be material. See Renfro v. City of Emporia, 948 F.2d 1529, 1533 (10th Cir.1991).
*2 A defendant initially must show both an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Adler, 144 F.3d at 670. Because a plaintiff bears the burden of proof at trial, a defendant need not “support [its] motion with affidavits or other similar materials negating [a plaintiff’s]” claims or defenses. Celotex, 477 U.S. at 323 (emphasis in original). Rather, a defendant can satisfy its obligation simply by pointing out the absence of evidence on an essential element of a plaintiff’s claim. See Adler, 144 F.3d at 671 (citing Celotex, 477 U.S. at 325).
If the defendant properly supports its motion, the burden then shifts to the plaintiff, who may not rest upon the mere allegation or denials of its pleading, but must set forth specific facts showing that there is a genuine issue for trial. See Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197–98 (10th Cir.2000). In setting forward these specific facts, the plaintiff must identify the facts “by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at 671. If the evidence offered in opposition to summary judgment is merely colorable or is not significantly probative, summary judgment may be granted. See Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 533 (10th Cir.1994). A plaintiff “cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial.” Conaway v. Smith, 853 F.2d 789, 793 (10th Cir.1988). Put simply, the plaintiff must “do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).
Certain local rules further govern the presentation of facts and evidence. Local Rule 56.1 requires the movant to set forth a concise statement of material facts. D. Kan. Rule 56.1. Each fact must appear in a separately numbered paragraph and each paragraph must refer with particularity to the portion of the record upon which the defendant relies. See id. The opposing memorandum must contain a similar statement of facts. The plaintiff must number each fact in dispute, refer with particularity to those portions of the record upon which he or she relies and, if applicable, state the number of the defendant’s fact that he or she disputes. The court may, but is not obligated to, search for and consider evidence in the record that would rebut the defendant’s evidence, but that the plaintiff has failed to cite. See Mitchell, 218 F.3d at 1199; Adler, 144 F.3d at 672. All material facts set forth in the statement of the defendant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the plaintiff. See id.; Gullickson v. Sw. Airlines Pilots’ Ass’n, 87 F.3d 1176, 1183 (10th Cir.1996) (applying local rules of District of Utah). A standing order of this court also precludes drawing inferences or making arguments within the statement of facts.
*3 The parties need not present evidence in a form that would be admissible at trial, but the content or substance of the evidence must be admissible. See Thomas v. Int’l Bus. Machs., 48 F.3d 478, 485 (10th Cir.1995) (internal quotations and citations omitted). For example, hearsay testimony that would be inadmissible at trial may not be included. See Adams, 233 F.3d at 1246. Similarly, the court will disregard conclusory statements and statements not based on personal knowledge. See Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1382 (10th Cir.1994) (regarding conclusory statements); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir.1995) (requiring personal knowledge). Finally, the court may disregard facts supported only by references to documents unless the parties have stipulated to the admissibility of the documents or the documents have been authenticated by and attached to an affidavit meeting the requirements of Rule 56(e). See FED.R.CIV.P. 56(e); D. Kan. Rule 56.1; 10A Charles Alan Wright, et al., Federal Practice and Procedure § 2722 (2d ed.1983) (footnotes omitted).
In the end, when confronted with a fully briefed motion for summary judgment, the court must determine “whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If sufficient evidence exists on which a trier of fact could reasonably find for the plaintiff, summary judgment is inappropriate. See Prenalta Corp. v. Colo. Interstate Gas Co., 944 F.2d 677, 684 (10th Cir.1991).
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Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2007)
II. FACTS All facts set forth are either uncontroverted, or, if controverted, taken in the light most favorable, along with all favorable inferences, to plaintiffs. See Adler, 144 F.3d at 670. To the extent relevant, the factual disagreements between the parties will be noted.
Statements made in either parties’ memoranda that are not supported with citations to the record have not been included in the court’s recitation of the facts. See D. Kan. Local R. 7.6 (“Each statement of fact should be supported by reference to the record in the case.”); 56.1(a) (“facts ... shall refer with particularity to those portions of the record upon which the movant relies”); 56.1(b) (same requirement for opposing memorandum). The parties’ memoranda also contain many statements followed by a record citation, but the record citation does not support the statement made. Because these statements are unsupported, they are also not included in the court’s recitation of the facts.
In addition, statements made in the parties’ memoranda that are supported only by reference to an unauthenticated exhibit have not been included in the recitation of facts. See D. Kan. Local R. 56.1(d) (“All facts on which a motion or opposition is based shall be presented by affidavit, declaration under penalty of perjury, and/or relevant portions of pleadings, depositions, answer to interrogatories and responses to requests for admissions.”). However, statements supported by an unauthenticated exhibit whose admissibility has been stipulated to have been included. See Doc. 142 at 4 (parties’ stipulations to the admissibility of “Personnel records of plaintiffs produced during this litigation,” “Discipline records of plaintiffs produced during this litigation,” “Diversity Reports: 2000–Quarterly Reports (First through Fourth),” and the “WPD Policy and Procedure Manual.”).
*4 The court also has not included in its factual consideration the parties’ statements that are supported by citation to inadmissible hearsay. See Adams, 233 F.3d at 1246 (stating that hearsay testimony that would be inadmissible at trial may not be considered). The court has not included statements that are irrelevant to the analysis at hand. See Adler, 144 F.3d at 670 (“[a]n issue is ‘material’ if under the substantive law it is essential to the proper disposition of the claim.”). One example, of many, is that plaintiffs make no claim with respect to hiring, so statements propounded about the statistical relationships with regard to hiring were not included. Other irrelevant statements of fact are those regarding pay, the numbers of females in supervisory positions or on the SWAT team, explosive ordinance disposal unit, or motorcycle unit, the levels of awards within the WPD, and termination, as plaintiffs make no claims in these regards.
Further, plaintiffs make multiple statements which are allegedly supported by citation to the report of one of their propounded experts, Penny Harrington. However, the court cannot determine the manner of plaintiffs citation to Harrington’s report. For example, plaintiffs cite to “Harrington Rep. at 94” but the court’s copy of the report is numbered 1 through 53, then 1 through 49, and then 1 through 8. The court’s electronic filing system numbers the report 1 through 22, then 1 through 22 a second time, then 1 through 22 a third time, then 1 through 10, then 1 through 12, and finally 1 through 22. Thus, the court cannot determine the portion of the report plaintiffs are citing to. As a result, these propounded statements are unsupported and not included.
Finally, as a result of the court’s standing order, the argument of the parties that is included within the parties factual statements was wholly ignored. See Revised Standing Order, available at http://www.ksd.circ10. dcn/ chambers/ showjudge.php?juegeid=13 (click on “Standing Order”), at ¶ 1.E. (“Statements of uncontroverted fact shall cite only facts. Responses to statements of uncontroverted fact shall cite only controverting facts. Argument and the drawing of inferences shall be reserved for the authorities and argument section of the memorandum.”).
A. General Factual Background All plaintiffs are female, and either are or have been commissioned police officers with the Wichita Police Department (“WPD”). Plaintiffs, while employed by the WPD, were qualified to perform the functions of a commissioned police officer. Chief Williams has been the chief of police of the WPD since April 12, 2000 and is responsible for managing the WPD.
1. The Work Assignments of Officers Officers at the WPD do not get to pick their assignments within the WPD. It is not unusual to be denied a request for a
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specific “beat” assignment. Beat assignments are not made based on seniority or disciplinary history and there is no difference in the hourly rate of pay for officers on different beats. Beat assignments are made based on supervisors’ determinations on how best to serve the community.
*5 Changes in the assignments of officers, such as to a different “substation,” shift, beat within a patrol, or to “Badge on the Floor” do not affect the pay, rank, or status of a police officer. Assignments to community policing, school resource officer positions, the gang unit, SCAT, the mounted unit, traffic, or to the exploited and missing children’s unit also do not affect the pay, rank, or status of a police officer. An assignment as a school resource officer is not a promotion, but a special assignment. Officers who have had special assignments do not receive extra credit for that experience in the promotion process. Chief Williams is not involved in the assignment of officers to different beats, or to assignments as community policing/beat coordinator, school resource officer, or traffic.
In addition, the WPD does not have a policy or practice of allowing officers to choose their light-duty assignments. Officers on light duty receive the same wages as officers on full duty. Chief Williams is not involved in assigning officers to light-duty work, unless the light-duty assignment involves a change in division. In situations where a light-duty assignment involves a change in divisions, deputy chiefs identify the light-duty assignment and request that Chief Williams issue a special order to effectuate the assignment.
Chief Williams is not generally involved in selecting which officers may attend training or scheduling of training. Chief Williams is only involved in training decisions when he orders a specific officer to obtain training, orders specific training for a large group of employees, or approves budget expenses for out of town training.
To become eligible to apply for promotions, officers must meet certain educational requirements. When making decisions on promotions, a list of the top twenty-five percent of the candidates is compiled. Chief Williams then selects from any of the candidates from that top twenty-five percent. Chief Williams’ decision can be reviewed by personnel, but the review is only to ensure compliance with the top twenty-five percent requirement. Chief Williams’ decision has never been reversed. Chief Williams encourages female officers, and all officers, through personal communications, to apply for promotions.
2. WPD Policies and Regulations WPD policy 207 prohibits discrimination, sexual harassment, and retaliation. In addition, the City has had policies prohibiting sexual harassment and discrimination for many years. These policies provide: 1) multiple ways to make a complaint regarding sexual harassment and discrimination; 2) an investigation process; and 3) discipline. The policy against discrimination against women refers to the department’s equal employment opportunity officer and the affirmative action administrator.
The City also has a policy regarding the Family Medical Leave Act (“FMLA”). The City’s FMLA policy permits the employee to choose whether to use sick leave or to go into without-pay status under FMLA. The FMLA policy provides for adjustments to seniority and advancement if unpaid leave is taken. FMLA leave is available to men and it is applied the same to men and women. The City does not have a maternity leave policy.
*6 The WPD has additional policies regarding officer behavior. These regulations provide:
3.405 (A) Members of the Department shall avoid any derogatory criticism, idle conversation, or gossip.
3.911 (C) While on-duty, commissioned officers shall take appropriate police action whenever necessary, and shall make a written report of such action [exception to making a written report: see Regulation 5.801]
5.801 (B) Members of the Department who receive designated calls for service from the dispatcher will document the handling and disposition of such calls by one of two methods only:
1. Obtaining an incident number and completing an Incident Report, or;
2. When allowed by policy, advising the dispatcher of the appropriate N–Code.
5.802 (B) Members of the Department who witness a police incident or who are contacted directly by a citizen who reports a police incident, shall document the handling and disposition of such incidents by obtaining an incident number and
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completing an Incident Report. For purposes of this section, a police incident is any situation which could not be disposed of, in the reporting sense, by utilization of an appropriate N–Code.
There is no rule or regulation prohibiting playing a prank or joking with another officer. An officer may be disciplined, however, if by playing a prank or a joke they violate a rule or regulation. The WPD investigates off-duty behavior.

3. The Disciplinary Process Another WPD regulation provides for a matrix of discipline within the WPD based on the regulation violated. Each regulation has a penalty code (e.g., “A”, “B”, or “C”) associated with it, which dictates the type of discipline to be imposed for the violation of that regulation. The penalty codes and associated discipline are:

PENALTY CODE

FIRST OFFENSE

SECOND OFFENSE

THIRD OFFENSE

A

Verbal warning to reprimand Reprimand to 3 days suspension 1 to 5 days suspension

B

Reprimand to 3 days suspension 1 to 5 days suspension

3 to 15 days suspension

C

1 to 5 days suspension

3 to 15 days suspension

5 to 30 days suspension to

dismissal

D

1 to 15 days suspension

5 to 30 days suspension to

15 to 30 days suspension to

dismissal

dismissal

E

15 days suspension to dismissal Dismissal

-

F

Dismissal

-

-

Chief Williams has the final authority as to what discipline an officer receives. Review of violations A through C are entrusted to the field sergeants, lieutenants, and captains. Violations ranked D through F are to be reported to the professional standards committee. WPD policy requires supervisors to initiate investigations of misconduct.2 WPD regulations allow Chief Williams to deviate from the disciplinary penalty policy.
Chief Williams did not discuss or make plans to find out negative information or to discredit Semsroth, Voyles, Warehime, or Plush. Chief Williams did not tell others to obtain such information. Chief Williams does not complete the evaluations of officers and does not meet with officers unless there is a grievance or possible problem with an officer’s evaluation that is brought to his attention.

4. Miscellaneous Testimony *7 Sergeant Wiley3 testified that the WPD could be characterized as a “good-ol’ boy” network, that the majority of white males are included in this good ol’ boy network, and that females are not normally part of this network. Sergeant Wiley also testified that in the past five years he has seen or heard about some unacceptable posters or fliers that were sexual in nature. He stated that he has heard individuals in supervisory positions use the words “bitch,” “whore,” and “ho” but he could not give a time frame for when he heard these words used. Sergeant Wiley testified that he has heard the word “whore” or “ho”
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Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2007)
said in the presence of female officers and that he had heard stereotypical statements by officers and supervisors made about lesbian female officers, including the use of slurs. Sergeant Wiley testified that officers and supervisors make comments about female employee’s breasts or buttocks or attractiveness and that, in his experience, female officers are not treated equally by their male counterparts. He has heard male employees state that they do not want a female backing them. Sergeant Wiley explained that an officer’s supervisor evaluates that officer and is also the person to whom the officer would make a complaint about harassment. Sergeant Wiley testified that a grievance procedure is available to officers who believe their evaluation was unfair but that usually the evaluation is “written in concrete” when it is completed. Sergeant Wiley stated that when female officers make complaints about their male counterparts, they are treated differently and avoided by their male counterparts.
Terri Moses is a deputy chief of the WPD. Deputy chief Moses testified that she had heard male employees make stereotypical comments about female officers, but she cannot remember any specific examples. Because there are not many women in the WPD, it can sometimes make the WPD more difficult for women. She is concerned about the rate women leave the police force.
B. Officer Greta Semsroth (“Semsroth”)4 Semsroth graduated from the Wichita Police Department’s Training Academy in September 2000. On September 30, 2000, she began 14 weeks of field training. Semsroth has held the position of police officer since that time. Semsroth testified that she believes evaluations and the granting of merit awards are done subjectively and that this subjectivity discouraged her from promotions. Semsroth has never applied for a promotion.
Semsroth’s allegations begin in 2000. In 2000, Semsroth alleges that officer Kilts sexually assaulted her. In a separate incident in 2000, Semsroth states that officer Kilts asked her for a date and came to her house and beat on the doors and windows while in uniform. Officer Kilts left when she told him to leave the property, although with some hesitancy. Semsroth never reported the alleged sexual assault by officer Kilts, never complained about officer Kilts, and does not know of anyone in the WPD who was aware of what happened. Officer Kilts was Semsroth’s field training supervisor at the time.
*8 Semsroth is aware of the City’s policy against discrimination against women and reviewed WPD policy 207 as a recruit. At her deposition, Semsroth testified that she had not experienced “sexual harassment,” but, rather, had heard things that were “inappropriate.” Semsroth has heard of male officers making comments about female officer’s breasts. At some point, officer Bartel said Semsroth was “hot” and sergeant Kennedy made comments about Semsroth being blonde and dumb. Semsroth was not offended by either of these incidents, but she found them “inappropriate” and “annoying.” Semsroth has not directly heard any male officers refer to female officers as bitches, but was told by a supervisor, lieutenant Hanley, that some male officers thought she was a bitch and that she should let her hair down and go out and have beers with the guys. Semsroth has heard a lieutenant refer to a female victim of a rape crime as a “whore.” Semsroth testified that she believes there is a negative attitude towards women in the WPD.
At some point, Semsroth thought sergeant Chambers had followed her. Semsroth spoke to captain Allred about this and he “looked into it.” Allred, after learning the facts, verbally counseled Semsroth about Semsroth not going to lunch during the first hour of her shift, the reason for sergeant Chambers following her. Semsroth admits that sergeants and lieutenants have a right or obligation, depending on the circumstances, to know where their officers are.
Semsroth testified that she believes she was passed over for an award regarding a suspicious character call that was later determined to be a conspiracy to commit robbery. Semsroth also testified that she had been denied support during emergency calls several times over the course of her career. In describing one example, however, Semsroth stated that she was not denied assistance during the emergency call itself.
On June 3, 2002, eighty-six WPD officers were involved in a shooting that occurred at the English Village Inn. Ten of these officers were female. (Of the original officers on the scene, Semsroth was the only female.) Officers who were involved in gunfire with the suspect in the incident received awards. Semsroth filed a report of her involvement at the English Village Inn. A fellow male officer who received an award had ridden with Semsroth to the scene but was more directly involved in the incident (he arrived at the scene with Semsroth but later also exchanged gunfire with the suspect). Eight male officers received awards for the June 3, 2002 incident.
In April 2003, Semsroth found in her locker photos of an award and a sticky note stating that Semsroth should cut out the award and pin it to her uniform because that would be the closest she would get to a real award. Semsroth was visibly upset
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Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2007)
by the photo and note and complained to sergeant Chambers about the photo and note. Sergeant Chambers and captain Tabor told Semsroth they would investigate who put the photo in her locker. After their investigation, sergeant Chambers and captain Tabor made officer Tucker apologize to Semsroth. Officer Tucker was verbally counseled and a notation of the incident was made in officer Tucker’s performance file. A formal investigation by the WPD Professional Standards Committee was not undertaken with regard to this incident.
*9 At some point prior to October 2003, a fellow officer, Officer Byers, showed Semsroth the shaved areas of his genitals. Semsroth did not report this incident with Officer Byers. In October 2003, Semsroth felt that officer Nixon, a male officer, did not back her on a call. Semsroth complained to sergeant Watts about this incident who told Semsroth that it was just “Nixon being Nixon” and that he would talk to officer Nixon but that he did not want officer Nixon to take it the wrong way. Sergeant Watts initially told Semsroth that officer Nixon should have backed her. Sergeant Watts then spoke to officer Nixon about the incident and investigated the matter. After his investigation, sergeant Watts did not think Nixon had acted inappropriately in not providing backup to Semsroth. After Semsroth spoke to sergeant Watts, she had no subsequent problems with officer Nixon.
Over the course of 2003, Semsroth made complaints to captain Tabor, sergeant Chambers, sergeant Watts, and lieutenant Hanley regarding unfair discipline of officer Plush, recognitions for females, beat assignments, specialty team units, unfair disciplinary practices, and her evaluation. Semsroth also complained to captain Tabor about the reference to her having made an EEO complaint in her evaluation (discussed infra ), which was not accurate.
Deputy chief Stolz referred Semsroth to Susan Leiker, the affirmative action administrator in personnel. Stolz told Semsroth not to quit, that if she had any problems she should come talk to him and he could move her and that any problem that was complained of would have an investigation completed within thirty days. Deputy chief Stolz also told Semsroth, however, that investigated officers would be exonerated within thirty days. He asked Semsroth for a written complaint or something in writing, but was never given anything in writing by Semsroth. A mutual agreement with a lieutenant (Semsroth does not recall which lieutenant) at the WPD caused Semsroth to meet with Leiker. Semsroth first met with Leiker on October 27, 2003.
Over the course of her conversations with Leiker, Semsroth told Leiker about her transfer to beat 39 (discussed infra ) and about “incidents that had been happening,” including the issue of recognition and the incident where she was told other officers thought she was a bitch. Semsroth verbally made complaints to Leiker, but never filed a written complaint with Leiker because she was afraid of the treatment she would receive at the department if she did so. Semsroth also informed Leiker that she felt retaliation for her visits to Leiker and Leiker informed deputy chief Stolz, deputy chief Lee, captain Gary Tabor and Sergeant Darren Chambers that Semsroth should be assured that no retaliation would be taken. Leiker also informed Stolz, Lee, Tabor, and Chambers that Semsroth had not yet made a complaint, despite having had several conversations with Leiker. Deputy chief Stolz told Leiker that after several meetings they should know whether there was a complaint and that if Semsroth did not make a complaint at the next meeting, she needed to return to work.
*10 Semsroth testified that, at some point after she made complaints about females not being treated the same, she was no longer offered the opportunity to teach training sessions. Semsroth stated that she was also denied the opportunity for continuing education hours, although she was granted the hours necessary to complete the forty hours per year that are required. Semsroth does not know of any male officer that received more than forty hours of continuing education per year.
In December 2003, Semsroth was transferred to beat 39. Beat 39 is referred to internally at the WPD as a “banishment beat.” A banishment beat is a beat on the outer edge of the city that covers a large, but less populated, space. Therefore, there are fewer calls on these beats and the officers assigned to these beats are often called to help on other beats. Sergeant Wiley testified that officers are assigned to banishment beats to keep them out of problems. Semsroth stated that new officers and officers for disciplinary reasons are assigned to banishment beats. Sergeant Wiley explained that an assignment to a banishment beat could have a negative impact on an officer’s career advancement because it offered less opportunity for involvement in high profile calls.
Sergeant Watts characterized Semsroth’s transfer to beat 39 as “bad news” when he told her about it. Semsroth was told that her transfer to beat 39 was because of turmoil with other male officers, not for disciplinary reasons. Semsroth was not told that her transfer to beat 39 was because she had talked to Leiker. Sergeant Wiley (not Semsroth’s direct superior) confirmed that part of the reason Semsroth was transferred to beat 39 was because of personality conflicts with other people on her shift and so that if she was on beat 39 she would be “out there” and would have “nothing to complain about.” Sergeant Chambers and sergeant Watts, Semsroth’s supervising sergeants at the time, stated that they had received complaints from other officers about Semsroth with regard to poor time-management and that this poor time-management was causing animosity with other
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Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2007)
officers on her beat. Sergeant Chambers explained this was part of the reason for moving Semsroth to beat 39. Semsroth had also complained about other officers’ poor time-management on her then-beat before she was transferred to beat 39.
In Semsroth’s 2001, 2002, and 2003 evaluations, it was noted that Semsroth had good time-management. However, in her 2003 evaluation, the complaints from Semsroth regarding other officer’s time-management, and the complaints about Semsroth from other officers about Semsroth’s time management were noted. Semsroth’s 2003 evaluation states that “Officer Semsroth has had several conflicts with co-workers on second shift Patrol East. There have been several complaints brought to the attention of supervision from co-workers about her time management skills. As a result of these complaints and statements made to supervision by Officer Semsroth, an EEO complaint was initiated by supervision on her behalf for investigation. The EEO complaint is still under investigation.” Semsroth moved out of beat 39 after nine or ten months, in about September 2004. While on beat 39, Semsroth’s rate of pay did not change. Semsroth believes, however, that she received less overtime opportunities on beat 39.
*11 On July 28, 2004, Semsroth was offered a change in her assignment. Semsroth declined a transfer because she felt there was no need to transfer if there was going to be a change in the WPD because of the lawsuit. In approximately May 2005, Semsroth applied for a beat coordinator position and was interviewed. Semsroth was offered a position at “patrol west” but she turned it down. Semsroth also turned down beat coordinator positions at “patrol east,” “patrol north,” and “patrol south.”
Semsroth objects to Chief Williams because he is the chief of the WPD and Semsroth believes that discrimination, hostile work environments, and retaliation happen at the WPD. Semsroth has never heard Chief Williams make a sexist or sexual remark. Semsroth has never requested to meet with Chief Williams and Chief Williams has never refused to meet with Semsroth. Chief Williams took no retaliatory action against Semsroth for filing her lawsuit or for talking with Leiker.
Semsroth filed an intake questionnaire with the Equal Employment Opportunity Commission (“EEOC”) on March 11, 2004. In her EEOC questionnaire, Semsroth described: 1) not receiving an award in 2001–2002; 2) the photo and note in her locker; 3) supervisors telling her in October 2003 that her co-workers called her a bitch and complained that she was milking calls yet those supervisors did not discipline the co-workers; 4) not receiving backup on October 13, 2003; 5) a lieutenant’s referral on October 20, 2003 to an equal employment opportunity representative; 6) investigation about a women’s luncheon on October 21, 2003; 7) a move in beats; 8) notes being made in her employment file after the City was contacted by Semsroth’s attorney; and 9) being ignored about an EEOC poster. In her description of the harm she experienced, Semsroth wrote: “I have been experiencing discrimination based on my gender for an extended period of time and when I tried to rectify it with the department they retaliated against me.” In her description of the last date of the harm she experienced, Semsroth wrote: “Continuous and ongoing discrimination and retaliation for the claim.” In response to the question “What reason(s) did the employer state for the harm you experienced?”, Semsroth wrote: “No one at the department has ever acknowledged that any discrimination has occurred.”
Semsroth filed a charge with the Kansas Human Rights Commission (“KHRC”) on May 21, 2004. In her KHRC charge, Semsroth described: 1) grievances that were filed with her supervisor, but nothing was done to resolve the issue; 2) the photo and note in her locker; 3) derogatory gender comments; 4) a change in beats; and 5) denial of backup. Semsroth related to the KHRC that these events occurred from October 2001 to November 2003.5 On the KHRC charge, Semsroth alleged violations of Kansas Act Against Discrimination based on sex and retaliation.
C. Officer Sara Voyles (“Voyles”) Voyles graduated from the Wichita Police Department’s Training Academy in December 1999. On December 11, 1999, she began 14 weeks of field training. Voyles has held the position of police officer since that time.
*12 As a recruit, Voyles read the City’s administrative regulation against sexual harassment and reviewed WPD policy 207. Voyles does not know of any complaints by female officers that were not investigated by the WPD. Voyles has heard co-employees at the WPD refer to female officers as “dykes,” but this was not done by supervisors and Voyles cannot recall a specific date. Voyles also testified that at some point, she was directed to a safe post during an emergency call by her male supervisor, sergeant Hoover. Male officers then took over the call.
Approximately three to three and a half years after joining the WPD, in about 2002, Voyles applied for an assignment to the SCAT unit. Voyles believes a male officer, Matthew Little, was given this assignment rather than Voyles. The City responds that the assignment officer Little was given was after the time frame in which Voyles applied. Between January 2000 and January 2006, one female of 120 appointments was assigned to the SCAT team.
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Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2007)
On May 4, 2002, Voyles applied for an assignment to the exploited and missing children unit. Officer Bauman was granted this assignment instead of Voyles. On June 15, 2002, Voyles requested an assignment to the exploited and missing children unit. On June 24, 2002, Voyles applied for an assignment to the mounted unit. Male officers Beck, Cundiff, Naldoza, and Woodard received the assignments. Voyles also applied for assignment to the mounted unit in March 2005. Male officers Boal, Cates, and Werts received the assignment instead of Voyles. Since January 2000, two females have been assigned to the mounted unit.
On December 2, 2002, Voyles received a one-day suspension as discipline for violating WPD regulation 3.911(C) because of an incident occurring in September 2002 where she failed to file a report. A violation of WPD regulation 3.911(C) requires a minimum one to five day suspension. Voyles did not file a grievance challenging this discipline. Since 1997, the following male officers were disciplined for violating WPD 5.802 (a different regulation that WPD regulation 3.911(C) but one which governs similar conduct): Estrada, Russel, Wagner, Medina, Alton, Janssen, Tate, Knowles, Teague, and Guliver. The officers were disciplined either with counseling, verbal counseling, a resignation while under investigation, or a written reprimand. Voyles feels her December 2002 evaluation is more harsh than male evaluations based on officers’ attendance at community meetings.
Voyles took FMLA leave in 2003 due to her pregnancy. She read the City’s FMLA policy in 2003 and it was continuously available to her in the City’s policies manual. Prior to taking FMLA leave, Voyles had the option of using her sick leave or saving it. Voyles took eight weeks of FMLA leave and saved her sick leave. Voyles did use all of her vacation time. When Voyles used her FMLA leave she was in without-pay status. She was not disciplined for going without pay, but her raise was deferred from December 2004 to February 2005 because of her without-pay status.
*13 In 2003, Voyles was also assigned to light duty during her pregnancy. Lieutenant Bohannon made comments to Voyles about Voyles’ weight and eating habits during her pregnancy. In December 2003, Voyles spoke with deputy chief Stoltz about lieutenant Bohannon’s comments. Deputy chief Stoltz told Voyles that it was “kind of how Bohannon was” and that she could file a complaint about lieutenant Bohannon. Voyles did not file a complaint. Deputy chief Stoltz did have captain Haynes speak with lieutenant Bohannon about lieutenant Bohannon’s comments to Voyles.
Voyles testified that she had not been retaliated against for complaining about discrimination. However, Voyles stated that when deputy chief Stoltz was made aware of the lawsuit she had filed (through a demand letter), she was moved from her light duty position with the gang unit to a light duty position in the records department. Voyles was told this move was to keep her from working near the lieutenant she complained about. While in this second light-duty assignment, Voyles worked with others who were placed on the same light duty assignment, although they were placed there as a result of discipline.
Voyles stated she was given an “oral reprimand” when media was present. However, at her deposition, Voyles testified she was not disciplined. Voyles heard lieutenant Bohannon speaking on the telephone and he said Voyles was “being difficult.” When this occurred, the media was next to her in an open room having a daily briefing. Voyles did not know if the media heard lieutenant Bohannon. Voyles did not establish the date of this occurrence, but it had to have occurred while she was assigned to light duty working with lieutenant Bohannon, during her pregnancy in approximately 2003.
At some point, in approximately 2005, Voyles applied for drug recognition expert training on two separate occasions. On her second application for the training, Voyles was not contacted by the department with a response. A male officer, officer Oblinger was selected to attend the training rather than Voyles because officer Oblinger had made 40 DUI arrests in the last year compared to Voyles’ zero DUI arrests.
Voyles has never spoken with Chief Williams about any sexism issues or discrimination. Voyles testified that she believed Chief Williams was included in the lawsuit because he was the head of the department and was responsible for what happened in the department.
Voyles filed an intake questionnaire with the EEOC on March 18, 2004. In her EEOC questionnaire, Voyles described: 1) being exposed to incidents of harassment with one example of a male officer asking Voyles if she was “enjoying herself” during a stop of a naked suspect; 2) comments from lieutenant Bohannon and an oral reprimand from lieutenant Bohannon with media nearby; 3) a reprimand for comments on a questionnaire; 4) an assignment to desk work in October 2001 for not writing enough tickets; and 5) disparate treatment on her 2002 evaluation. Voyles’ intake questionnaire mimicked Semsroth’s questionnaire in all other respects. In her description of the harm she experienced, Voyles wrote: “I have been experiencing discrimination based on my gender for an extended period of time and when I tried to rectify it with the department they retaliated against me.” In her description of the last date of the harm she experienced, Voyles wrote: “Continuous and
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Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2007)
ongoing discrimination and retaliation for the claim.” In response to the question “What reason(s) did the employer state for the harm you experienced?”, Voyles wrote: “No one at the department has ever acknowledged that any discrimination has occurred.” Both of these responses are identical to those of Semsroth.
D. Officer Kim Warehime (“Warehime”) *14 Warehime graduated from the Wichita Police Department’s Training Academy in June 1996. On June 22, 1996, she began 14 weeks of field training. Warehime has held the position of police officer since that time. At some point, Warehime applied for a detective position. She applied for a detective position only one time.
Warehime was assigned to beat 39 in 1996. Warehime felt that there is not a lot of activity on beat 39 and an officer has little opportunity for gaining experience. Warehime also testified, however, that her lieutenant told her the biggest drug busts happen on beat 39 and that, at some point in her time with the WPD, she asked to be put back on beat 39 because of its location.
Warehime, as a recruit, was aware that the City has a policy against sexual harassment and discrimination. Warehime also had a class covering the sexual harassment policy of the City. Warehime could not recall any statements made by male officers about women’s bodies. Warehime has heard “other people” make comments about her short stature. She has heard other officers refer to female victims of rape as “whores,” but she cannot remember when these instances occurred or who specifically was involved. Warehime testified that supervisors “giggle[d] along with it” when this happened. Warehime also testified that other officers have said to her that female officers would get their butts kicked if they were engaged in physical combat. Warehime has heard “other people” comment about her ability to “back” them, but she could not recall when this happened or the individuals involved, just that it has happened on and off since 1996.
At some point, Warehime was on a call with two male officers, officers Tiday and Richardson, when the male officers left the scene without informing Warehime. Warehime was still at the scene gathering information from individuals with mental health problems for the preparation of a police report.
In 2001, officer Kilts exposed himself to Warehime, who reported this incident to her supervisors. Warehime also reported that officer Kilts told her he had raped a woman. Warehime was told by a fellow officer that other officers did not trust Warehime after she reported these incidents.
At some point, Warehime became aware of a meeting of female officers about getting a maternity leave policy. Warehime, however, did not attend the meeting and does not know when it was held. Lieutenant Loftis asked Warehime if she had been to a meeting about discrimination. Warehime replied that she had not been invited, so she did not go to the meeting. Warehime then stated that the meeting was about maternity issues, not discrimination, and left the room.
Several times, Warehime applied for school resource officer positions. Warehime felt she was discouraged from applying for one position because the supervisor would prefer to have Warehime as a middle school officer rather than a high school officer. The assignment was given to a male officer, officer Russell. A second position was given to a male officer with more seniority and previous experience as a school resource officer, officer Lacy. Warehime was given the assignment of school resource officer for the 2004–2005 year and was the first female school resource officer.
*15 In October 2003, Warehime had a conversation with captain Tabor regarding a “hostile work environment” at patrol east. Warehime told captain Tabor she believed she was being treated differently because of her gender. During this conversation, Warehime was reluctant to give names or tell specifics because she only wanted to tell the story and did not want to get anyone in trouble. Captain Tabor looked into what he thought was the subject of Warehime’s conversation with him and, in his report, found no discrimination.
In January 2004, Warehime was disciplined with a written reprimand by lieutenant Atteberry for gossiping at the station during work hours, and the incident was mentioned in Warehime’s evaluation. Warehime admits that she was talking with another male officer at work but disputes that the statements she made were properly classified as “gossip.” A male officer, officer Finkeldei was given a written reprimand for violating WPD 3.405(A) (the WPD regulation prohibiting gossip). This incident was mentioned in his evaluation. Officers Clayton Schuler, Erik Landon, Jason Pfeifer, and Michael Miner have also been investigated for violations of WPD regulation 3.405. The charges of a violation of regulation 3.405 were not sustained so the four were not disciplined. The incident was not mentioned in Officer Miner’s evaluation. At some point (after she had been disciplined for gossiping), Warehime turned in a holiday request form to lieutenant Loftis. The document she turned in
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Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2007)
also had copies attached that referred to diseases. Warehime was not disciplined because of this request form.
At some point after making a hostile work environment complaint, Warehime asked to be transferred from patrol east. (Warehime’s transfer request was apparently denied, although this is not established in the record.) Male officers received transfers after making requests: officer Ayres was transferred in August 2003 and officer Boucard was transferred in July 2003. Officer Ayres was transferred from patrol east because he received a six-month detective rotation. After completion of the detective rotation, officer Ayres was transferred to patrol west because he was the subject of an excessive force investigation at patrol east. Officer Ayres did not make a complaint of a hostile work environment. Officer Boucard requested a transfer after he and captain Tabor discussed a personality conflict with deputy chief Stolz. Officer Boucard was transferred from patrol east on July 5, 2003, several weeks after his request, when an opening at patrol west became available.
In 2005, Warehime had an idea for the development of a gang coalition (separate from the gang unit at the WPD) which she communicated within the WPD. Warehime then saw an article in the newspaper that the gang unit was developing a similar idea. Warehime spoke to Leiker about this incident and thereafter spoke with her supervisors about her participation in the gang coalition. Warehime then became involved with and participated in the coalition.
*16 Warehime is not aware of any derogatory comments made by Chief Williams about female officers. Warehime has also never spoken with Chief Williams about discrimination or harassment within the department. Warehime testified that she sued Chief Williams individually because he is responsible for everyone beneath him.
Warehime did not file a complaint of sex discrimination with Leiker or with the WPD equal employment officer because she felt that once she made a complaint she would be labeled. Approximately one year to six months before filing her lawsuit, Warehime did make at least two appointments with Leiker but she backed out of the appointments. Leiker called Warehime to urge Warehime to come talk about her problems. Warehime made verbal complaints to lieutenant Loftis and Leiker. However, Warehime never filed a written complaint.
Warehime filed an intake questionnaire with the EEOC on March 12, 2004. In her EEOC questionnaire, Warehime described: 1) questions in a 1999 interview about children, marriage, and day care; 2) the 2001 conversation with officer Kilts and the WPD’s failure to reprimand him; 3) discipline on January 5, 2004 for making a comment about an officer having a disease; 4) questions about a lunch in January 2004, and 5) a rotation for a temporary job that she was not offered. Warehime’s intake questionnaire mimicked Semsroth’s and Voyles’ questionnaires in all other respects. In her description of the harm she experienced, Warehime wrote: “I have been experiencing discrimination based on my gender for an extended period of time and when I tried to rectify it with the department they retaliated against me.” In her description of the last date of the harm she experienced, Warehime wrote: “Continuous and ongoing discrimination and retaliation for the claim.” In response to the question “What reason(s) did the employer state for the harm you experienced?”, Warehime wrote: “No one at the department has ever acknowledged that any discrimination has occurred.”
E. Officer Heather Plush (“Plush”) Plush graduated from the Wichita Police Department’s Training Academy in August 2002. On August 3, 2002, she began 14 weeks of field training. Plush held the position of police officer from the time of her employment to her resignation on December 21, 2005. She never applied for a promotion during that time and never applied for a specialty unit.
Plush has heard of officers being disciplined for violating WPD policy 207 but she has not heard supervisors make remarks about the appearance of female officers. At some point, a male officer, Officer Rausch, at an after-work party, told Plush she needed to wear a mini skirt.
Plush does not believe she was discriminated against with regard to promotions, work assignments, training, receipt of bonuses, benefits, or receipt of awards. Plush later testified, however, that she believed she did not receive a community policing position (a position which she testified was given to a male officer with less seniority) because she had filed her lawsuit. Also, Plush testified that at some point, after a call in which force had to be used, sergeant Hugria spoke with officer Plush and a male officer, officer Boyd. Sergeant Hugria asked Plush why she had not drawn her gun but did not ask officer Boyd the same question.
*17 In February 2004, Plush wrote: “I need a good man. I need man love. Honk if you love men” on officer Tucker’s truck windows in “White–Out.” On July 29, 2004, Chief Williams saw officer Tucker’s vehicle with the writing still on the windows. Chief Williams told officer Tucker to make a report about the incident, which officer Tucker did on July 29, 2004.
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After officer Tucker made a report, Plush was investigated, but no violation was found and Plush was not disciplined. Plush was unaware of any male officers who played pranks but were not investigated.
In May 2004, Plush requested a transfer to patrol west from patrol east “due to a hostile work environment.” The request was denied. A male officer with six months less experience, officer Davidson was given the assignment. In June 2004, Plush received a commendatory performance report for her “diligent effort” identifying a suspect in a robbery. This report was signed by all of Plush’s supervisors, including Chief Williams. Then, in August 2004, Plush was transferred from patrol east to patrol west. Plush also refers to the transfer requests that were granted to officer Ayres and officer Boucard (discussed supra with regard to officer Warehime). Plush testified she was informed that officer Ayres was transferred because he was having problems. Plush testified that Officer Boucard told Plush that if she complained about a hostile work environment they could not keep her at her current patrol, but she does not remember when she had this conversation with officer Boucard.
In 2004, Plush had two different supervisors. WPD policy 215.03A states that when a supervisor has monitored an officer for less than 180 days, the current supervisor must consult with the former supervisor and both supervisors must sign the officer’s evaluation. Plush’s 2004 evaluation was sent by sergeant Hungria to sergeant Chambers for review before sergeant Hungria presented it to Plush. Sergeant Chambers suggested Plush should be rated as an “M” rather than the “E” rating sergeant Hungria had proposed. In the WPD’s rating system, an “M” rating means the officer meets expectations, while an “E” rating means the officer exceeds expectations. Plush was ultimately rated as an “E” after discussing her evaluation with lieutenant Bannister.
On August 30, 2004 deputy chief Stolz made a complaint about behavior of Plush occurring in March 2004 where Plush made a rude comment during a squad meeting. In September 2004, Plush was given a written reprimand for violating WPD regulation 3.207(B).
Deputy chief Stolz also informed Chief Williams that several reports had been received that Plush had engaged in inappropriate behavior while off duty at a party. Plush was at an after-hours bachelor party at a strip club and one of the strippers lifted Plush’s shirt for less than three seconds. Plush was not in uniform or otherwise identifiable as an officer. Deputy chief Stolz and Chief Williams discussed that the reports would need to be investigated and the matter was referred for a professional standards investigation. The investigation was ultimately expanded to include investigation of the behavior of other officers in attendance at the party. Ultimately, Plush was not disciplined for her behavior. The investigation process did not occur until after the lawsuit was filed, in November 2004. Both male officers and female officers gave reports of the incident. Plush testified that she was the only officer investigated “at first” and also testified that she and officer Cornish engaged in the same behavior at the off duty party but she heard that he was not investigated. No one was disciplined out of this event.
*18 Another officer was involved in a similar-type incident. Captain Allred was photographed while working off-duty at a hotel. When the photograph was taken, a woman in the photograph was holding a blow-up penis. When captain Allred became aware of the photo, he was embarrassed and reported the matter to Chief Williams who counseled Allred to be more aware in the future.
Plush testified that supervisors maintain discretion whether to place disciplinary verbal counseling into an officer’s file. Plush testified that she believed she has received more severe discipline than men for violations of the same policy but gives no examples, other than officer Allred.
Plush has not spoken directly to Chief Williams about her concerns. Plush has heard Chief Williams speak at sex discrimination and harassment training. Plush stated there was nothing unusual or unsupportive in Chief Williams’ demeanor about the policy against harassment and discrimination and Chief Williams encouraged people to make reports of discrimination and harassment. Plush never made a complaint of discrimination to anyone in the City’s personnel office of the WPD’s equal employment opportunity office. Plush did not hear Chief Williams say that a hostile work environment cannot be created in one week. Plush testified that she does not know why she sued Chief Williams personally but that her concern with Chief Williams is that her allegations have occurred under his supervision.
In March 2005, Plush expressed interest in a community beat team coordinator position. Plush began community policing the week of Thanksgiving 2005. Plush resigned from the WPD on December 21, 2005.
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Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2007)
III. ANALYSIS
A. Title VII Claims Title VII prohibits an employer from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” 42 U.S.C. § 2000e–2(a)(1). Plaintiffs6 allege multiple avenues of recovery pursuant to Title VII against the City: 1) disparate treatment, including discrimination based on unequal discipline, denial of positions and training opportunities, denial of transfer requests, denial of awards, hostile work environment, retaliation, and a pattern or practice of discrimination; and 2) disparate impact based on excessive subjectivity in promotion, discipline, hiring, and termination.
1. Scope of the Claims Before proceeding to the merits of plaintiffs’ claims against the City under Title VII, the court addresses the City’s contention that many of the incidents propounded by plaintiffs are not reviewable by this court because they either have not been timely exhausted through the required administrative process, or they were not addressed in the parties’ pretrial order.
i. Administrative Prerequisites
a. Exhaustion Title VII requires a plaintiff to exhaust her administrative remedies prior to suit. Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir.2005). A Title VII plaintiff must exhaust administrative remedies for each individual discriminatory or retaliatory act. Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir.2003). “Unexhausted claims involving discrete employment actions” are not viable. Id. at 1210; see also Brown v. Unified Sch. Dist. 501, 465 F.3d 1184, 1186–87 (10th Cir.2006) (“[E]ach discriminatory act starts a new clock for filing charges alleging that act. Thus, discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002))). “Title VII is not intended to allow employees to dredge up old grievances; they must promptly report and take action on discriminatory acts when they occur. Unlitigated bygones are bygones.” Duncan v. Manager, Dep’t of Safety, City and County of Denver, 397 F.3d 1300, 1308 (10th Cir.2005).
b. Timely Filing *19 Title VII requires a plaintiff to file a charge within 300 days of the allegedly discriminatory employment practice, in cases where the plaintiff has initially instituted proceedings with the state agency. 42 U.S.C. § 2000e–5(e)(1). In cases where the plaintiff has not filed a charge with the state agency, Title VII requires a plaintiff to file a charge within 180 days of the allegedly discriminatory conduct. 42 U.S.C. § 2000e–5(e)(1). Kansas is a deferral state where the 300 day time limit applies. See 29 C.F .R. § 1601.80 (designating the Kansas Commission on Civil Rights as a deferral agency); Brown, 465 F.3d at 1186 (recognizing Kansas as a deferral state).
Plaintiffs assert they are entitled to a 300 day “look back” period. (Doc. 169 at 35 (“plaintiffs’ actionable claims are limited to 300 days prior to completing their administrative charge.”).) Defendants counter that the filing period is extended to 300 days only if “the complainant also files with the state agency” and that, therefore, only Semsroth is entitled to a 300 day window because she is the only plaintiff who filed with the KHRC. (Doc. 172 at 10.)
The court notes that none of the plaintiffs “initially” filed with the KHRC. Semsroth first filed with the EEOC and filed with the KHRC over two months later. Voyles and Warehime did not file with the KHRC at all. Plaintiffs direct the court to 29 C.F.R. § 1601.13(a)(3). Section 1601.13 provides that when deferral agencies have waived their right to exclusive processing of claims, a charge filed with the EEOC “is timely if the charge is received within 300 days from the date of the alleged violation.” 29 C.F.R. § 1601.13(a)(4)(ii)(A). However, plaintiffs have not proffered any of the procedural facts necessary to establish the applicability of this section.
Regardless, there is legal authority for using plaintiffs’ proposed 300 day look back period. See Peterson v. City of Wichita, Kan., 888 F.3d 1307, 1308 (10th Cir.1989) (“In a deferral state such as Kansas, a Title VII claimant must file his discrimination charge with the appropriate state or local agency, or with the EEOC, within 300 days of the alleged unlawful act.”); Smith v. Oral Roberts Evangelistic Ass’n, 731 F.2d 684, 688–90 (10th Cir.1984) (emphasis added) (holding that a
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timely filing with a state agency is not required for the 300 day EEOC filing period to apply). To give plaintiffs the benefit of the doubt, the court will apply a 300 day look back period to each plaintiff’s claims.
Plaintiffs next assert that the “continuing violation” doctrine allows the court to consider acts of alleged discrimination which occurred prior to the appropriate limitations period for all of plaintiffs claims. The continuing violation doctrine permits consideration of unexhausted incidents of alleged discrimination for hostile work environment claims, as long as “an act” contributing to a hostile work environment took place within the limitations period for filing the EEOC charge. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). For the continuing violation doctrine to apply, however, there must be a relationship between acts alleged after the beginning of the filing period and the acts alleged before the filing period. Duncan, 397 F.3d at 1308–09. In addition, a court can consider the history of acts comprising the hostile work environment only if the employee did not unreasonably delay the filing of a hostile work environment claim. Id. at 1308. To make this determination, a court should look at the type of the acts, the frequency of the acts, and the perpetrator of the acts. Id. at 1309.
*20 It is clear that the continuing violation doctrine is only applicable to plaintiffs’ hostile work environment claim. See, e.g., Duncan, 397 F.3d at 1309–10 (refusing to apply the continuing violation doctrine when the unexhausted incidents were not part of the same hostile work environment that occurred during the filing period); Annett v. Univ. of Kan., 371 F.3d 1233, 1238 (10th Cir.2004) (dismissing a retaliation claim for failure to exhaust administrative remedies because it was not part of a timely-filed EEOC charge); Martinez v. Potter, 347 F.3d 1208, 1210–11 (10th Cir.2003) (holding that “unexhausted claims involving discrete employment actions” are not viable, whether they occurred prior to the 300 day period or after the filing of the EEOC complaint); Davidson v. Am. Online, Inc., 337 F.3d 1179, 1184 (10th Cir.2003) (“[A] continuing violation theory ... is not permitted for claims against discrete acts ... [t]hus, a claimant must file a charge ... within the appropriate limitations period as to each such discrete act ... that occurred.”); Boyler v. Cordant Tech., Inc., 316 F.3d 1137, 1139 (10th Cir.2003) (applying continuing violation theory to hostile work environment claim); Croy v. Cobe Laboratories, Inc., 345 F.3d 1199, 1202–03 (10th Cir.2003) (construing plaintiff’s EEOC complaint as a hostile work environment claim and therefore applying the continuing violation doctrine to that claim).
As a result, the court has separately distinguished the alleged acts considered exhausted for plaintiffs’ hostile work environment claims from the alleged acts considered exhausted for plaintiffs’ other Title VII claims. The hostile work environment claims are discussed, separately, infra.
c. Application
1. Semsroth Semsroth filed with the EEOC on March 11, 2004. Therefore, her look back period includes exhausted allegations occurring between May 16, 2003 and March 11, 2004. Semsroth exhausted the following claims from that period: 1) supervisors telling Semsroth in October 2003 that Semsroth’s co-workers had called her a bitch and complained that Semsroth was milking calls but the supervisors failing to discipline the co-workers; 2) reporting to Semsroth’s supervisors about not receiving backup by officer Nixon in October 2003 but those supervisors failing to discipline officer Nixon; 3) a closed door meeting interrogating females about the nature of a women’s luncheon in October 2003; 4) a change in beats to beat 39 in December 2003; 5) after Semsroth’s attorney made contact with the WPD, notes being made in her “files” regarding the situation; and 6) being ignored about the placement of an EEOC poster.
In her opposition to defendants motion for summary judgment, Semsroth alleged facts, albeit minimally with respect to some, only with respect to exhausted claims one through four. Therefore, incidents five and six will not be considered; only incidents one through four will be considered.
2. Voyles *21 Voyles filed with the EEOC on March 18, 2004. Therefore, her look back period includes allegations between May 23, 2003 and March 18, 2004. Voyles exhausted the following allegations from that period: 1) lieutenant Bohannon making comments about Voyles’ body and eating habits while pregnant in December 2003; and 2) an oral reprimand from lieutenant Bohannon with media present during this same time period.
In her opposition to defendants’ motion for summary judgment, Voyles alleged facts with respect to both incidents.
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Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2007)
3. Warehime Warehime filed with the EEOC on March 12, 2004. Therefore, her look back period includes allegations between May 17, 2003 and March 12, 2004. Warehime exhausted the following allegations from that period: 1) that in January 2004 she made a comment about a disease and was disciplined but other male officers have made similar comments and were not disciplined; 2) that in January 2004 she was interrogated as to why there was a women’s luncheon by three male lieutenants; and 3) she was retaliated against after her attorney sent a letter to the City because she was next in line for a rotation but they stopped giving the rotations to her bureau after they received the letter.
In her opposition to defendants’ motion for summary judgment, Warehime alleged facts only with respect to incidents one and two. Warehime did not allege any facts with respect to incident three. Therefore, only incidents one and two will be considered by the court.
ii. Consideration of Alleged Facts Not Present in the Parties’ Pretrial Order The City states, without supporting authority, that factual contentions now made by plaintiffs, but which were not contained within the parties’ pretrial order, cannot now be considered by the court. Plaintiffs do not respond to this argument by the City.
The parties struggled for weeks to prepare a pretrial order and submitted several drafts to the court for consideration. (See Docs. 133, 136.) A pretrial order was finally entered, but it is still riddled with objections. (Doc. 142.) Exasperated, the Court allowed the filing of such an order to prevent further delay of the case and reserved ruling on the objections made in the pretrial order. (Doc. 141.)
The plaintiffs’ factual contentions in the pretrial order were quite lengthy, comprising 22 pages of text. One of defendants’ objections to the pretrial order related to the relevance of certain statements in the plaintiffs’ factual contentions. Additionally, defendants asserted that plaintiffs made allegations in the pretrial order that had not been made in the most recent amended complaint.
The court need not further consider the issue, however. After completing the above analysis of plaintiffs’ timely, exhausted claims, it is clear that the contentions defendants complain of are no longer under consideration.
2. Disparate Treatment To make a case of disparate treatment, an employee must show: 1) she is a member of a protected class; 2) she suffered an adverse employment action; and 3) similarly situated employees received treatment different from that employee. Paloni v. City of Albuquerque Police Dep’t, Nos. 05–2131, 05–2338, 2006 WL 3791286, at *3 (10th Cir. Dec. 27, 2006) (citing Trujillo v. Univ. of Colo. Health Sci. Ctr., 157 F.3d 1211, 1215 (10th Cir.1998)). All plaintiffs are female, and, therefore, there is no dispute that plaintiffs are a member of a protected class.
*22 An adverse employment action is one which constitutes “a significant change in employment status, such as hiring, firing, or failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). “An adverse employment action must be materially adverse to the employee’s job status.” Duncan v. Manager, Dep’t of Safety, City & County of Denver, 397 F.3d 1300, 1314 (10th Cir.2005) (internal quotation omitted). The challenged employment action is materially adverse if a reasonable employee might have been dissuaded from making or supporting a charge of discrimination. Burlington Northern & Sante Fe Ry. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2415 (2006). “Reassignment of job duties is not automatically actionable.” Id. at 2417.
To show disparate treatment, an employee must also show that she was treated differently than a similarly situated employee. Plaintiffs must establish that they were “similarly situated to [the co-employee treated differently] in all relevant respects.” McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir.2006).
Similarly situated employees are those who deal with the same supervisor and are subject to the same standards governing performance evaluation and discipline. In determining whether two employees are
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similarly situated, a court should also compare the relevant employment circumstances, such as work history and company policies, applicable to the plaintiff and the intended comparable employees. Moreover, even employees who are similarly situated must have been disciplined for conduct of comparable seriousness in order for their disparate treatment to be relevant.
Id. at 745 (internal citations omitted). In McGowan, the Tenth Circuit found two co-employees were not similarly situated where the co-employees had different job responsibilities, were “not subject to the same policies, statutes and findings of wrongdoing,” and had different levels of culpability in an underlying incident. Id.
Disparate treatment claims are evaluated under the framework announced in McDonnell Douglas Corp v. Green, 411 U.S. 792, 802–03 (1973). Once a plaintiff has made a prima facie showing of disparate treatment, the burden then shifts to defendants to “articulate a legitimate, nondiscriminatory reason for the adverse employment action.” Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1212 (10th Cir.2003). The plaintiff then responds by demonstrating that the employer’s reasons for the adverse action are pretextual. Id.
For ease of consideration, the court will analyze each of plaintiffs disparate treatment claims separately. These disparate treatment claims are: 1) generalized disparate treatment claims based on allegedly unequal discipline, the denial of positions and training opportunities, the denial of transfer requests, and the denial of awards; 2) a hostile work environment claim; 3) claims of retaliation; and 4) a claim of disparate treatment based on a “pattern or practice” of disparate treatment.7
i. Generalized Disparate Treatment
a. Unequal Discipline
1. Semsroth *23 Semsroth has not exhausted any claims for disparate treatment related to unequal discipline. Related to the broad area of discipline, Semsroth has exhausted two claims. Semsroth alleges that: 1) supervisors told her in October 2003 that her co-workers had called her a bitch and complained that she was milking calls, but the supervisors did not discipline the co-workers; and 2) Semsroth’s supervisors did not discipline officer Nixon for failing to back her on a call in October 2003. These claims are not, however, disparate treatment claims because Semsroth has not shown that she was treated differently, only that the employees were not punished. Moreover, Semsroth has not stated how she suffered an adverse employment action.
2. Voyles Voyles has exhausted one claim related to the broad area of discipline, but has not alleged all elements of a prima facie case of disparate treatment with regard to her discipline. Voyles alleges that she was given an oral reprimand from lieutenant Bohannon with media present. Voyles does not allege, however, how she was treated differently than a fellow male officer with respect to this incident.
3. Warehime Warehime has exhausted one claim for disparate treatment related to unequal discipline. Warehime alleges that in January 2004, she made a comment about a disease and was disciplined for this comment but other male officers have made similar comments and were not disciplined. Warehime alleges an adverse employment action based on her “discipline.” Assuming that her discipline qualifies as an adverse employment action, Warehime still has not met her prima facie burden for her disparate treatment claim because she has not created a genuine issue of material fact that she was treated differently than similarly situated employees.
The facts show that Warehime was disciplined in January 2004 for gossiping. However, the similarly situated male employees identified who violated the same regulation at the WPD were similarly disciplined. A male officer, officer Finkeldei was given a written reprimand for violating WPD 3.405(A) (the WPD regulation prohibiting gossip). This incident was mentioned in his evaluation. Officers Clayton Schuler, Erik Landon, Jason Pfeifer, and Michael Miner have also been investigated for violations of WPD regulation 3 .405. The charges of a violation of regulation 3.405 were not sustained,
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however, so the four were not disciplined. Warehime has not shown how the behavior for which she was disciplined was similar to the conduct for which the male officers were investigated. As a result, Warehime has not identified how she was treated differently than the identified fellow employees.
b. Denial of Positions and Training Opportunities No plaintiff has exhausted any claims for disparate treatment related to a denial of positions or training opportunities.
c. Denial of Transfer Requests No plaintiff has exhausted any claims for disparate treatment related to a denial of a transfer request.
D. Denial of Awards *24 No plaintiff has exhausted any claims for disparate treatment related to a denial of awards.
ii. Hostile Work Environment A violation of Title VII is established if a plaintiff proves that “discrimination based on sex has created a hostile or abusive work environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). To establish a sexually hostile work environment, an employee must show: 1) the employee is a member of a protected group; 2) the employee was subject to unwelcome harassment; 3) the harassment was based on sex; 4) because of the harassment’s severity or pervasiveness, the harassment altered a term, condition, or privilege of the employee’s employment and created an abusive work environment. Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir.2007). An employer creates a hostile work environment 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.” Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir.1998).
To make a determination of a hostile work environment, the court must consider “the work atmosphere both objectively and subjectively, looking at all the circumstances from the perspective of a reasonable person in the plaintiff’s position.” Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680 (10th Cir.2007) (internal quotations and citations omitted). Determining whether an actionable hostile work environment claim exists requires an examination of “all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (quotations omitted). When an employee alleges a hostile work environment through actions that are not sexual by their nature, a more fact intensive analysis is necessary. Spain v. Gallegos, 26 F.3d 439, 447 (3d Cir.1994).8
“An employer will not be liable under Title VII if the employer was not on actual or constructive notice of the alleged harassment. Actual knowledge is usually demonstrable where the plaintiff has reported harassment to management-level employees.” Harsco, 475 F.3d at 1188 (Title VII hostile work environment claim); see also Duncan, 397 F.3d at 1310 (“An employer is absolved of liability for acts of harassment by its employees if it undertakes remedial and preventive action ‘reasonably calculated to end the harassment.’ If the employer’s response ends the harassment by the employee in question, we presume that the remedial action was sufficient.”). However, liability exists when the employer either knew or should have known of the harassment and failed to take prompt remedial action. Hicks v. Gates Rubber Co., 833 F.2d 1406, 1418 (10th Cir.1987).
*25 The court has previously delineated which of plaintiffs’ claims have been exhausted (and, of those exhausted claims, which are currently being pursued). Plaintiffs urge the court to also consider under the continuing violation theory “[a]ll acts that occurred since they have been employed with the force” because the City “has maintained an environment that is continuously discriminatory toward females, works to suppress female officers in lower positions, has ostracized Warehime since 2001 after reporting Officer Kilts, and purposely keeps the number of women suppressed.” (Doc. 169 at 35.)
As stated above, the continuing violation doctrine permits consideration of unexhausted incidents of alleged discrimination for hostile work environment claims, as long as “an act” contributing to a hostile work environment took place within the
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limitations period for filing the EEOC charge. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). For the continuing violation doctrine to apply, however, there must be a relationship between acts alleged after the beginning of the filing period and the acts alleged before the filing period. Duncan, 397 F.3d at 1308–09. In addition, a court can consider the history of acts comprising the hostile work environment only if the employee did not unreasonably delay the filing of a hostile work environment claim. Duncan, 397 F.3d at 1308. To make this determination, a court should look at the type of the acts, the frequency of the acts, and the perpetrator of the acts. Duncan, 397 F.3d at 1309.
The court has previously determined that this theory does not apply to the discrete act disparate treatment claims discussed above. The court will now consider, in conjunction with each plaintiff, the application of the theory to plaintiffs’ hostile work environment claims and the facts alleged.
a. Semsroth As stated above, Semsroth’s exhausted claims that she continues to pursue are: 1) supervisors telling Semsroth in October 2003 that Semsroth’s co-workers had called her a bitch and complained that Semsroth was milking calls but the supervisors failing to discipline the co-workers; 2) reporting to her supervisors that officer Nixon failed to back her in October 2003 but her supervisors not disciplining officer Nixon; 3) a closed door meeting with females interrogating the females about a women’s luncheon; and 4) a change in beats in December 2003.
Semsroth also alleges the following incidents: 1) in 2000, officer Kilts sexually assaulted her; 2) in 2000, officer Kilts asked her for a date and came to her home and beat on the doors and windows until she told him to leave; 3) Semsroth has heard things that were inappropriate; 4) Semsroth has heard of male officers making comments about female officers’ breasts; 5) officer Bartel said Semsroth was “hot”; 6) sergeant Kennedy made comments about Semsroth being blonde and dumb; 7) lieutenant Hanley, in addition to telling Semsroth that other officers thought she was a bitch, told Semsroth she should let her hair down and go out for beers with “the guys”; 8) Semsroth has heard a lieutenant refer to a female victim of a rape crime as a “whore”; 9) Semsroth thought sergeant Chambers unjustifiedly followed her; 10) Semsroth believes she was passed over for an award regarding a suspicious character call; 11) Semsroth believes she was denied support during emergency calls; 12) Semsroth believes evaluations and merit award evaluations are conducted subjectively and this has discouraged her from applying for promotions; 13) Semsroth believes there is a negative attitude toward women in the WPD; 14) Semsroth believes she was passed over for an award regarding a June 2002 shooting incident; 15) Semsroth received a mocking photo and note in her locker from officer Tucker and he was not disciplined; 16) at some point prior to visiting Leiker in 2003, officer Byers showed Semsroth the shaved areas of his genitals; 17) deputy chief Stolz told Semsroth that any complaint she made to him he would investigate but that the investigated officer would be exonerated within thirty days; 18) Semsroth was no longer offered the opportunity to teach training sessions after she made complaints about gender issues; and 19) Semsroth was denied the opportunity for continuing education hours above the minimum of forty that are required. Unless identified with a particular date, these incidents have no time frame alleged for their occurrence.
*26 For the court to consider these acts as part of the alleged hostile work environment claim under the continuing violation theory, Semsroth must show a relationship between the alleged acts that occurred after the beginning of the filing period and the acts that occurred before the beginning of the filing period. Out of the above lengthy list, only a few can fairly be said to relate to the exhausted claims.
The allegation that lieutenant Hanley, in addition to telling Semsroth that other officers thought she was a bitch, told Semsroth she should let her hair down and go out for beers with “the guys” is related in temporal scope to the allegation of lieutenant Hanley’s failure to discipline Semsroth’s fellow officers for calling Semsroth a bitch. The incident was also perpetrated by the same individual, lieutenant Hanley. Semsroth’s allegation that she was denied support during emergency calls is related to the exhausted allegation that she did not receive back-up on a call from officer Nixon in October 2003. It is not known if the two allegations are of the same temporal scope or whether they were perpetrated by the same individuals, but the claims are certainly of the same character. Finally, the allegation by Semsroth regarding a failure to discipline officer Tucker based on the mocking photo and note he left in her locker, when viewed with a liberal eye, is related to Semsroth’s exhausted claims. Officer Tucker is the same individual involved in Semsroth’s exhausted claim about his failure to back her on a call. In addition, Semsroth has exhausted claims concerning failure to discipline male officers. In the same vein, the allegation by Semsroth that she was unfairly passed over for an award arising out of the June 2002 shooting incident is related to officer Tucker’s photo and note mocking Semsroth for not receiving an award. The allegation that Semsroth believes she was passed over for an award regarding a suspicious character call will be similarly considered, as background.
Semsroth’s other allegations, although very large in number, simply do not relate to the exhausted incidents or provide
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relevant background for the exhausted claims. Semsroth’s exhausted claims have nothing to do with hearing gender-based inappropriate remarks, officer Kilts’ sexual assault of Semsroth or officer Kilts harassing Semsroth for a date, officer Byers showing Semsroth his genitals, being followed, investigation procedure, training, or continuing education. Semsroth should have timely exhausted these allegations if she wished that they be pursued. The allegations do not concern the same individuals, many are unknown as to their time frame of occurrence, and they are of a wholly different character than Semsroth’s exhausted allegations. See, e.g., Duncan, 397 F.3d at 1309–10 (holding that an anonymous letter and adjustment of a score on an exam are not related to harassing statements, rumors, and an anonymous article, even though there was a temporal relation, because “they are of a different character, they took place while [the plaintiff] was on a different assignment, and they were not perpetrated by the same people”); Holmes v. Utah, Dep’t of Workforce Servs., 483 F.3d 1057, 2007 WL 1140359, at *4–6 (10th Cir.2007) (applying the Morgan and Duncan continuing violation analysis to four individual plaintiff’s sex-based hostile work environment claims).
*27 As a result, the allegations before the court for consideration for Semsroth’s hostile work environment claim are: 1) lieutenant Hanley telling Semsroth in October 2003 that Semsroth’s co-workers had called her a bitch and complained that Semsroth was milking calls but the supervisors failing to discipline the co-workers; 2) lieutenant Hanley telling Semsroth she should let her hair down and go out for beers with “the guys;” 3) Semsroth reporting to Semsroth’s supervisors about not receiving backup by officer Nixon in October 2003 but those supervisors failing to discipline officer Nixon; 4) denial of support during emergency calls; 5) a closed door meeting interrogating females about the nature of a women’s luncheon in October 2003; 6) a change in beats to beat 39 in December 2003; 7) Semsroth’s supervisors failing to discipline officer Tucker because of the mocking photo and note he left in her locker; and 8) Semsroth not receiving awards for her participation in a June 2002 shooting and a suspicious character call.
Considering the acts properly before the court on this claim, the court finds that Semsroth has not created a genuine issue material fact with respect to her hostile work environment claim. First, Semsroth has not shown through these incidents how she was harassed based on sex. Only two incidents could possibly be classified as gender-based: lieutenant Hanley telling Semsroth that she should “let her hair down” and the closed-door meeting with females regarding the women’s luncheon. Regarding lieutenant Hanley’s suggestion to Semsroth that she should “let her hair down,” while this comment was arguably inappropriate, as opposed to teasing, it is insufficient to create a genuine issue of material fact with respect to Semsroth’s hostile work environment claim. See, e.g., Braden v. Cargill, Inc., 176 F.Supp.2d 1103, 1113 (D.Kan.2001) (granting summary judgment on a hostile work environment claim where the plaintiff alleged only acts that could be considered inappropriate but were not sufficient to unreasonably interfere with the plaintiff’s work performance); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (instructing that a single statement which “ ‘engenders offensive feelings in an employee’ would not affect the conditions of employment to [a] sufficiently significant degree to violate Title VII”). Regarding the questioning about the women’s luncheon, Semsroth alleges no facts regarding the questions asked about the women’s luncheon and the court therefore has no way to evaluate whether those questions were gender-based. Further, Semsroth does not even allege how this incident was offensive. See, e.g., Bolden v. PRC Inc., 43 F.3d 545, 554 (10th Cir.1994) ( “General harassment if not racial or sexual is not actionable.”).
More important, Semsroth has not shown that the alleged conduct was severe or pervasive such that it created an abusive work environment.9 The acts, in total, do not show a pervasive use of gender-based discrimination such that the conduct would unreasonably interfere with Semsroth’s work environment. The allegations are not physically threatening or humiliating, occurred infrequently, and were not severe.10 See, e.g., Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998) (stating that when evaluating allegations of a hostile work environment claim for severity and pervasiveness, courts should “filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing); Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (stating factors to consider in evaluating the severity and pervasiveness of a hostile work environment claim as the frequency of the conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance); Carrasco v. Boeing Co., 190 Fed. Appx. 650 (10th Cir.2006) (affirming grant of summary judgment on hostile work environment claim based on sex (allegations of four harassing statements) because no rational jury could conclude that these statements, made over a one-year period caused the plaintiff’s workplace to be permeated with discriminatory intimidation, ridicule and insult); Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257 (10th Cir.1998) (affirming grant of summary judgment on hostile work environment claim based on sex (allegations of one gender-based comment and four acts of unwanted physical contact regarding one female employee and four gender-based comments regarding another female employee) because the alleged incidents were isolated, took place over a four-year period, and many of which did not occur because of the plaintiff’s sex); Gross v. Burggraf Const. Co., 53 F.3d 1534, 1547 (10th Cir.1995) (affirming a grant of summary judgment where the plaintiff alleged crude and rough comments used by the employer in reprimanding and motivating, because the comments were not related to the plaintiff’s gender).
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b. Voyles *28 Voyles’ exhausted claims are: 1) lieutenant Bohannon making comments about Voyles’ body and eating habits while she was pregnant in 2003; and 2) an oral reprimand from lieutenant Bohannon with media present. Voyles also alleges the following incidents: 1) she was directed to a safe post during an emergency call by a male supervisor and male officers took over the call; 2) she has heard co-employees refer to female officers as “dykes;” 3) in 2002, Voyles applied for an assignment to the SCAT unit but believes a male officer was given the assignment instead of her; 4) on May 4, 2002, Voyles applied for assignment to the exploited and missing children’s unit but a male officer was granted the assignment instead of her; 5) on June 24, 2002, Voyles applied for assignment to the mounted unit but a male officer was chosen; 6) on December 2, 2002, Voyles received a one-day suspension for failing to file a report but male officers violating the same regulation have not been disciplined as harshly; 7) Voyles believes her December 2002 evaluation regarding community meeting attendance was more harsh than evaluations of male officers; 8) Voyles was moved from a light-duty assignment in the gang unit to a light-duty assignment in the records unit after she filed her lawsuit; 9) in 2005, Voyles applied for drug recognition expert training but the training was given to a male officer; 10) in March 2005, Voyles applied for an assignment to the mounted unit but a male officer was chosen. Unless identified with a particular date, these incidents have no time frame alleged for their occurrence.
For the court to consider these acts as part of the alleged hostile work environment claim under the continuing violation theory, Voyles must show a relationship between the alleged acts that occurred after the beginning of the filing period and the acts that occurred before the beginning of the filing period. The exhausted acts that occurred during the filing period involve only comments made by lieutenant Bohannon. These comments involved Voyles’ weight, eating habits, and work product. Out of the above lengthy list, only one of Voyles’ allegations can be said to relate to the exhausted claims. Voyles’ allegation that she was moved from a light duty assignment in the gang unit to a light duty assignment in the records department after filing her lawsuit is related to her exhausted claims. Voyles was told she was moved to keep her from working near lieutenant Bohannon. All Voyles’ other allegations, however, are not related to her exhausted claims. They are not the same type of incidents and were not perpetrated by the same supervisor. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 120 (2002) (listing the factors for a court to consider when applying the continuing violation theory as the “same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers”).
Therefore, the only allegations the court will consider with respect to Voyles’ hostile work environment claim are the comments by lieutenant Bohannon and the transfer in light duty positions as a result of lieutenant Bohannon’s presence. It is clear that from these allegations that Voyles cannot make a case for hostile work environment against the City. First, the comments made by lieutenant Bohannon about Voyles’ weight and eating habits and the transfer in light duty assignments are not the type of incidents so “severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” such that a jury could find a hostile and abusive work environment. Davis v. U.S. Postal Serv ., 142 F.3d 1334, 1341 (10th Cir.1998); but see Zisumbo v. McCleodUSA Telecomms. Servs., 154 Fed. Appx. 715, 726 (10th Cir.2005) (reversing a lower court’s grant of summary judgment on a sex-based hostile work environment claim because the evidence showed that 75% of the time the plaintiff’s supervisor referred to the plaintiff as “prego” while she was pregnant and thus the harassment was pervasive). Second, there is no allegation that the oral comments made by lieutenant Bohannon with media present were gender motivated, gender related, or even untrue. See Stahl v. Sun Microsystems, Inc, 19 F.3d 533, 538 (10th Cir.1994) (“If the nature of an employee’s environment, however unpleasant, is not due to her gender, she has not been the victim of sex discrimination as a result of that environment.”). Considering all the circumstances, the incidents alleged by Voyles were not frequent or severe and can not establish a prima facie case of hostile work environment. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (determining whether an actionable hostile work environment claim exists requires an examination of “all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance”).
c. Warehime *29 Warehime’s exhausted claims that she continues to pursue are: 1) in January 2004 she was unfairly disciplined for gossiping; and 2) in January 2004 she was interrogated by three male lieutenants as to why there was a women’s luncheon. Warehime also alleges the following incidents: 1) other people have made comments about Warehime’s short stature; 2) other officers have referred to female victim’s of rape crimes as “whores” and supervisors giggled along with it when this happened; 3) other officers have said that female officers would get their butts kicked if involved in physical combat; 4) other people have commented on Warehime’s ability to back them on calls; 5) while on a call with two male officers, the male officers left the scene without informing Warehime; 6) officer Kilts told Warehime that he had raped a woman and after
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Warehime reported this incident to her supervisors, Warehime was told by a fellow officer that other officers did not trust Warehime after the incident; 7) in 2001, officer Kilts exposed himself to Warehime; 8) Warehime has applied for school resource officer assignments and transfers to a different patrol but these were denied; 9) in 2005, the gang unit took credit for Warehime’s ideas for a gang coalition.11 Unless identified with a particular date, these incidents have no time frame alleged for their occurrence.
For the court to consider these acts as part of the alleged hostile work environment claim under the continuing violation theory, Warehime must show a relationship between the alleged acts that occurred after the beginning of the filing period and the acts that occurred before the beginning of the filing period. The exhausted acts that occurred during the filing period are that Warehime was unfairly disciplined and was interrogated about a women’s luncheon by male lieutenants in January 2004. The additional incidents alleged by Warehime all involve allegations of comments about appearance and ability, a lack of back-up, behavior by officer Kilts, denial of assignment requests, and a failure to receive credit for a project. None of these incidents is related to either unfair discipline or supervisor questioning about women’s meetings.
As a result, the only allegations this court will consider for Warehime’s hostile work environment claim are an allegation of unfair discipline and supervisor questioning. As stated above with respect to Voyles’ claims, these are neither the type nor frequency necessary to support a hostile work environment claim. Being treated unfairly one time by a superior and having to answer questions about what was discussed at a women’s lunch do not constitute a hostile and abusive work environment.
iii. Retaliation Title VII makes it unlawful to retaliate against an employee because the employee has opposed any practice made unlawful by Title VII, or because the employee has “participated ... in an investigation, proceeding or hearing.” 42 U.S.C. § 2000e–3(a). The elements of a prima facie claim of retaliation under Title VII are: 1) the employee engaged in protected opposition to discrimination; 2) the employee suffered an adverse employment action during or after her protected opposition that a reasonable employee would have found materially adverse; and 3) a causal connection exists between the protected activity and the materially adverse action. McGowan v. City of Eufala, 472 F.3d 736, 741 (10th Cir.2006); Paloni v. City of Albuquerque Police Dep’t, Nos. 05–2131, 05–2338, 2006 WL 3791286, at *3 (10th Cir. Dec. 27, 2006). “Once the employee establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. If the employer does so, the burden shifts back to the plaintiff to show that the employer’s reasons are pretextual.” McGowan, 472 F.3d at 741 (citations omitted).
*30 The finding of an adverse employment action is required for a retaliation claim. See Paloni, 2006 WL 3791286, at *3 (stating that a finding of an adverse employment action is a prerequisite to Title VII claims arising out of disparate treatment stemming from the imposition of discipline and retaliation). “A challenged employment action is adverse for the purposes of a claim for retaliation under Title VII if a reasonable employee would have found it materially adverse.... [A]n employer’s action is adverse under Title VII if it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.12 McGowan, 472 F.3d at 742 (internal quotations and citations omitted).
A prima facie case of retaliation next requires a showing of causation. First, in order to show a causal connection, the employer must have been aware of the employee’s protected activity and the plaintiff must establish that knowledge. See, e.g., Petersen v. Utah Dep’t of Corrs., 301 F.3d 1182, 1190 (10th Cir.2002) (stating that “an employer cannot engage in unlawful retaliation if it does not know that the employee has opposed or is opposing a violation of Title VII” and finding that causation was not established on a denial of promotion adverse employment action claim because no one in the decisionmaking process “even knew of her protected opposition”).
The required link between the protected activity and subsequent adverse employment action can then be inferred if the action occurs within a short period of time after the protected activity. O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.2001). However, “[u]nless there is very close temporal proximity between the protected activity and the retaliatory conduct, the plaintiff must offer additional evidence to establish causation.” Id.; Piercy v. Maketa, 480 F.3d 1192, 2007 WL 901911, at * 4 (10th Cir. Mar. 27, 2007) (“A retaliatory motive may be inferred when an adverse action closely follows protected activity. However, unless the termination is very closely connected in time to the protected activity, the plaintiff must rely on additional evidence beyond temporal proximity to establish causation.” (quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999))).
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Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2007)
a. Semsroth Semsroth has exhausted and presents only one claim related to retaliation. Semsroth alleges she was retaliated against because her beat assignment was changed to beat 39. Semsroth alleges she engaged in protected opposition to discrimination when she met with Leiker, the WPD’s equal employment officer. Semsroth first met with Leiker on October 27, 2003. She never made a formal written complaint with Leiker, but it is clear she discussed issues she felt were discriminatory. Semsroth informed Leiker about her issues involving recognition, the incident where she was informed that other officers referred to her as a bitch, and retaliatory conduct because of verbal complaints she had made to supervisors about gender issues. Because Semsroth made an informal complaint about the type of discrimination that is prohibited by Title VII, she has properly alleged the first element of her prima facie claim. See Robbins v. Jefferson County Sch. Dist. R–1, 186 F.3d 1253, 1258 (10th Cir.1999) (holding that informal complaints to superiors or the use of the employer’s internal grievance procedures constitutes protected activity under Title VII).
*31 Semsroth then alleges that her transfer to beat 39 was an adverse employment action. In Burlington N. & Sante Fe Ry. v. White, the Supreme Court found that an employee involuntarily transferred to a less desirable position had stated a material adverse employment action under Title VII, even though the duties of both positions were similar. 126 S.Ct. 2405, 2416–18 (2006). The Burlington Northern Court noted, however, that “reassignment of job duties is not automatically actionable.” 126 S.Ct. at 2417. The Tenth Circuit, in a case decided after the Burlington Northern decision, has stated:
After Burlington Northern we have continued to examine claims of adverse action through a case-by case approach, examining the unique factors relevant to the situation at hand. The materiality of a claimed adverse action is to be determined objectively; petty slights, minor annoyances, and simple lack of good manners will not deter a reasonable worker from making or supporting a charge of discrimination.... Even prior to Burlington Northern, we found adverse action if it constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different job responsibilities, or a decision causing a significant change in benefits.
McGowan, 472 F.3d at 742 (internal quotations and citations omitted).
Taking the facts in the light most favorable to Semsroth, Semsroth has created a genuine issue of material fact with respect to this element. Semsroth alleges beat 39 is referred to as a banishment beat not only because of its location on the outer edge of the city, but also because it is where officers are assigned when they are new or for disciplinary reasons. Sergeant Wiley testified that an assignment to a banishment beat could have a negative impact on an officer’s career advancement because it offered less opportunity for involvement in high profile calls. It is undisputed that there are fewer calls on this beat and that officers on beat 39 are often called to help on other beats. When Sergeant Watts told Semsroth about her assignment to beat 39, he characterized it as “bad news.” While on beat 39, Semsroth’s rate of pay did not change, but she received fewer overtime opportunities. Applying the standards articulated above, an objective view of Semsroth’s alleged facts show her alleged materially adverse employment action is similar to the action found adverse in Burlington Northern. Semsroth has established a genuine issue of material fact with respect to this element. See also Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1214–15 (10th Cir.2003) (finding a transfer materially adverse when, although the plaintiff retained the same rate of pay, her job duties and responsibilities “dramatically” changed); Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216 (10th Cir.2003) (finding a materially adverse employment action where a reduction in the level of responsibility and skill required for different positions had been established); but see Sanchez v. Denver Public Schs., 164 F.3d 527, 532 (10th Cir.1998) (finding that a “purely lateral transfer” of a teacher to a different elementary school was not a materially adverse employment action).
*32 To make a prima facie case, Semsroth must next show a causal connection exists between the protected activity and the materially adverse action. It is clear that Semsroth’s employer knew of her protected opposition activity. Semsroth met with the City’s own equal employment officer and Leiker directly communicated with Semsroth’s supervisors about Semsroth’s communications with her. The circumstances here also suggest that this should be considered a close-proximity case. Semsroth first met with Leiker in late October 2003 and met with her subsequent to that first meeting. Leiker communicated directly to Semsroth’s supervisors about Semsroth’s discussions with her. In December 2003, Semsroth’s superiors then made the beat transfer of Semsroth to beat 39. In addition, the period between the time Semsroth first met with Leiker and the alleged materially adverse employment action was no more than two months. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999) (“[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.”). Because of these circumstances, Semsroth has alleged facts to cause a genuine issue of material fact with regard to causation.
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Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2007)
Because Semsroth has stated a prima facie case of retaliation, the burden now shifts to the City to articulate a legitimate, nondiscriminatory reason for Semsroth’s transfer to beat 39. The City asserts that Semsroth was transferred to beat 39 because of her turmoil with other officers. Sergeant Wiley stated that Semsroth was having personality conflicts with other people on her shift. Semsroth’s supervisors, sergeant Chambers and sergeant Watts, received complaints from other officers about Semsroth. These complaints were that Semsroth had poor time management and that because of her poor time management there was animosity with other officers on Semsroth’s beat. Semsroth was also complaining about other officers on her beat and those officers’ time management. Based on these facts, the City has stated a legitimate nondiscriminatory reason for Semsroth’s transfer to beat 39. Animosity amongst employees assigned to the same job is a sufficient reason to break those employees up. The fact that Semsroth was alleged to have poor time-management skills is a sufficient reason for moving her to the beat with fewer calls and activity.
The burden now shifts back to Semsroth to show that the City’s reasons for her transfer to beat 39 are pretextual.13 Semsroth attempts to show pretext based on the fact that her 2001, 2002 and 2003 evaluations note that Semsroth had good time-management skills. Semsroth 2001 evaluation rates her quantity of work as “check-plus” in the box for “produces the required amount of work .” The text of her 2001 evaluation then states: “Officer Semsroth spends an appropriate amount of time on calls and makes herself available for calls when needed.” In a later section, it is stated that “Officer Semsroth makes good use of her time.” Semsroth’s 2002 evaluation rates her quantity of work as a “check” in the box for “Produces the required amount of work.” The text of her 2002 evaluation contains the following comments: 1) “Officer Semsroth can be relied upon to complete tasks in a timely manner;” 2) “Officer Semsroth produces the required amount of work;” 3) “Officer Semsroth makes good use of her time; she completes her work in a reasonable amount of time using her time management skills;” and 4) “Officer Semsroth will review her monthly statistics, which are lower than the previous evaluation period.”
*33 Semsroth’s 2003 evaluation rates her quantity of work as a “check” in the box for “Produces the required amount of work.” The text of her 2003 evaluation repeats the first and second comments from her 2002 evaluation and alters the third comment only slightly to read: “She makes reasonably good use of her time; she completes her work in a reasonable amount of time using her time management skills.” (i.e., the comment is “reasonably good” in 2003, rather than “good” in 2002.) Semsroth’s 2003 evaluation notes that her “statistics have gone down in some categories while others have stayed about the same compared to last year’s performance.” Semsroth’s 2003 evaluation then notes the complaints from Semsroth regarding other officers’ time management and the “several complaints” from fellow officers about Semsroth’s time management.
Semsroth states no other basis for finding pretext and states no gender-based reason for finding pretext. The basis she alleges is unfounded. It is clear from a review of her 2001, 2002, and 2003 evaluations that Semsroth’s time management skills were a matter of concern. Her quantity of work rating decreased from 2001 to 2002 (from her first to second year with the WPD) and her statistics then declined or stayed the same from her second to third year with the WPD. Semsroth has failed to show pretext and her claim for retaliation therefore fails. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10 th Cir.1999) (stating that to show pretext, a plaintiff must demonstrate “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons” (quotation omitted)). Semsroth has not carried her burden on this claim.
b. Voyles Voyles has exhausted no claims related to retaliation.
c. Warehime Warehime exhausted one claim for retaliation, but, as stated above on page 42, she presents no facts in regard to her exhausted retaliation claim.
iv. Pattern and Practice Plaintiffs argue they “are entitled to a pattern and practice burden shifting trial format as announced in Thiessen v. General Electric Corp., 267 F.3d 1095, 1106 (10th Cir.2001).” (Doc. 169 at 43.) In Thiessen, the Tenth Circuit outlined the trial approach to be taken in class action claims alleging pattern or practice discrimination.14 267 F.3d at 1106. A pattern or
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practice claim changes the burdens imposed on the parties and requires, initially, only that a discriminatory policy existed, rather than that each individual plaintiff was the victim of a discriminatory policy. Id.
Plaintiffs cite heavily from the Thiessen case, but do not identify for the court how Thiessen applies to the facts underlying their claims. Plaintiffs state only that “[h]ere, plaintiffs have alleged that the City of Wichita has engaged in a pattern and practice of discrimination.” (Doc. 169 at 44.) Plaintiffs perform absolutely no factual analysis, do not apply their theory to the facts of their case, and do not address how their allegations against defendants somehow fit into a pattern or practice analysis. Significantly, plaintiffs have not identified how a pattern or practice analysis saves any of their claims from summary judgment.
*34 In addition, it is clear to the court that the Thiessen pattern or practice format applies only to class-action claims, not individual claims as exists in this litigation. Thiessen directly states that “[p]attern-or-practice cases differ significantly from the far more common cases involving one or more claims of individualized discrimination.” 267 F.3d at 106. Plaintiffs claim that Thiessen was not limited to class actions because it did not expressly state that it was. This argument is contradicted by the language of the opinion itself, however, because the opinion is clear it is discussing the application of the pattern or practice theory to a class-action claim. For these reasons, the court rejects plaintiffs’ arguments in this regard.
3. Disparate Impact The Tenth Circuit recently discussed the difference between disparate impact and disparate treatment claims under Title VII:
Claims of disparate treatment may be distinguished from claims that stress ‘disparate impact.’ The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive ... is not required under a disparate-impact theory.
Carpenter v. Boeing Co., 456 F.3d 1183, 1186–87 (10th Cir.2006)(citing Int’l Bd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977)).
To establish a prima facie case of disparate impact under Title VII, an employee must show that “a specific identifiable employment practice or policy caused a significant disparate impact on a protected group.” Carpenter, 456 F.3d at 1187; see also 42 U.S.C. § 2000e–2(k)(1)(A)(I) (“An unlawful employment practice based on disparate impact is established ... only if ... a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of ... sex.”).
First, the employee must identify the specific employment practice causing a discriminatory practice. Wards Cove Packing Co ., Inc. v. Antonio, 490 U.S. 642, 656 (1989) (holding that employees alleging disparate impact claims under Title VII are responsible for “isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities”). “[A] plaintiff must show that there is a legally significant disparity between (a) the gender composition, caused by the challenged employment practice, of the pool of those enjoying a job or job benefit; and (b) the gender composition of the qualified applicant pool, i.e., the pool from which potential qualified applicants might come.” Carpenter, 456 F.3d at 1193 (internal citations, quotations and alterations omitted).
Plaintiffs assert disparate impact claims based on excessive subjectivity in the WPD’s policies and procedures for promotion, discipline, hiring, and termination. (Doc. 169 at 46.) Defendants respond that the allegations plaintiffs exhausted do not involve any allegation that could be construed as a claim of disparate impact. (Doc. 155 at 25–26.) In addition, defendants argue that plaintiffs have not asserted they have been adversely affected by the WPD policies. (Doc. 155 at 26.)
*35 Several of the underlying EEOC charges in this case reference the WPD discipline system. Thus, because the facts underlying the WPD disciplinary system appear in the administrative charge, a disparate impact claim based on discipline is reasonably related to the disparate treatment claims asserted by plaintiffs. See Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir.1998) (disparate impact claim was reasonably related to failure to promote disparate treatment claim where EEOC investigation would have included investigation of promotion policies and their effect on minority employees); Gomes v. Avco Corp., 964 F.2d 1330 (2d Cir.1992) (same, where investigation of disparate impact claim would reasonably have flowed from an investigation of disparate treatment claim; complaint simply asserted two different theories of relief to remedy particular incidents of discrimination described in EEOC charge). Williams v. Sprint/United Mgmt. Co., No. 03–2200–JWL, 2005 WL 1801605, at *3 (D.Kan. July 29, 2005) (allowing amendment of the complaint to assert a claim for
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disparate impact, despite the fact that plaintiffs had not expressly exhausted this claim, because, inter alia, the facts underlying the plaintiffs disparate impact claim were referenced in the EEOC charges and therefore the disparate impact claim was reasonably related to the exhausted disparate treatment claims).
Regarding their disparate impact claim based on excessive subjectivity in discipline, plaintiffs make only a paucity of allegations. Plaintiffs propound their expert, Dr. Bardwell, in support of their disparate impact claim based on discipline. In total, plaintiffs state the following with respect to Dr. Barwell’s statistical analysis regarding discipline:
Females are investigated at a statistically higher rate than males. (Bardwell Rep. at 20.) This created a statistical disparity well above that necessary to display a prima facie case of discrimination. (Id.). This disparity far exceeds the 0.50 level required to establish a prima facie case of discrimination. (Bardwell Rep. at 21).
(Doc. 169 at 20 ¶ 22.)
Plaintiffs claim of disparate impact based on excessive subjectivity in discipline fails for several reasons. First, plaintiffs never establish what the statistical disparity between female and male investigations actually is, or whether a statistical disparity in investigations led to a statistical disparity in actual discipline.15 Plaintiffs only argue that the disparity is enough to make a prima facie case, but never establish the statistical methodology used or the basis against which it is to be measured. In addition, plaintiffs rely on Dr. Bardwell’s report but it has not been authenticated, and, as defendants point out, cannot be relied upon by plaintiffs without authenticating the report in the record. See Boldridge v. Tyson Foods, Inc., No. 05–4055–SAC, 2007 WL 846517, at *1 (D.Kan. Mar. 20, 2007) (refusing to consider a physician’s report when ruling on a motion for summary judgment because the report was not authenticated or stipulated to).
*36 Finally, and most significantly, even if the court found that plaintiffs had created a genuine issue of material fact with respect to Dr. Bardwell’s statistical evidence of disparate impact, this is not enough for plaintiffs’ prima facie claim. An individual plaintiff making a disparate impact claim must show that he or she “personally has been the victim of discrimination by the general practice which allegedly resulted in a discriminatory impact on a protected group.” Coe v. Yellow Freight Sys., Inc., 646 F.2d 444, 451 (10th Cir.1981). The court has previously reviewed the claims of the plaintiffs regarding unfair discipline and found that no plaintiff could make a prima facie showing of disparate treatment based on discipline. See supra pages 46–47. As a result, the disparate impact claim based on discipline fails as well.
Plaintiffs additional claims of disparate impact also fail. Plaintiffs assertions of disparate impact based on excessive subjectivity in promotions, hiring, and termination were not related to any claims presented to the EEOC. As a result, claims of disparate impact based on these allegations have not been exhausted and the court need not consider them. See, e.g., Boldridge v. Tyson Foods, Inc., No. 05–4055–SAC, 2007 WL 846517, at *7 (D.Kan. Mar. 20, 2007) (finding an ADA disparate impact claim not exhausted where it was not like or reasonably related to the plaintiff’s allegations in his EEOC charge) (citing Pacheco v. Mineta, 448 F .3d 783, 792 (5th Cir.2006) (finding that plaintiff did not exhaust his disparate impact claim where his charge detailed only disparate treatment claims and did not identify any neutral employment policies)); Gray v. Oracle Corp., No. 2:05–CV–534 TS, 2006 WL 2987941, at *2 (D.Utah Oct. 17, 2006) (refusing the amendment of a complaint to add a claim for disparate impact, based on futility, because the plaintiff did not include a disparate impact claim in his EEOC charge and therefore did not exhaust a disparate impact claim).
B. Section 1983 Claims Section 1983 prohibits “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” by any person acting under color of law. 42 U.S.C. § 1983. Plaintiffs generally allege that Chief Williams: 1) was aware of discriminatory practices and ignored them; and 2) retaliated against plaintiffs by instigating disciplinary actions after receiving notice of their lawsuits.16 (Doc. 142 at 6–7.)
1. Qualified Immunity Chief Williams half-heartedly raises a qualified immunity defense by stating, in a brief paragraph, the standards of law related to qualified immunity. However, Chief Williams provides no analysis on this point. On the other hand, plaintiffs did not respond to defendants’ qualified immunity argument. The Court will not explore this issue without any briefing by the parties.
25

Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2007)
2. Temporal Scope of the Claims In Kansas, an action brought under § 1983 is subject to a two-year statute of limitations. Brown v. Unified Sch. Dist. 501, 465 F.3d 1184, 1188 (10th Cir.2006); Hamilton v. City of Overland Park, Kan., 730 F.2d 613, 614 (10th Cir.1984) (stating that because Congress has not enacted a statute of limitations applicable to § 1983, all § 1983 claims should be characterized as actions for injury to the rights of another and that Kansas’ statute of limitations for such an action is two years); Kan. Stat. Ann. § 60–513(a)(4) (stating that an “action for injury to the rights of another” shall be brought within two years).
*37 Plaintiffs do not respond to Chief Williams’ argument that plaintiffs’ § 1983 claims are limited by the two-year statute of limitations. Because the court, below, finds that plaintiffs have not alleged facts that could fulfill a prima facie case against Chief Williams, an analysis of the temporal scope of the claims is not necessary.
3. Prima Facie Claim “Under § 1983, when a defendant is sued in his individual capacity, the complaint must allege facts that show the defendant personally participated in the alleged violation. Consistent with this rule, the court has held that a supervisor cannot be held liable for his employees’ actions based solely on his supervisory position. Rather, there must be some affirmative link between the alleged deprivation and the supervisor’s control or failure to supervise.” Esnault v. Burnett, 83 Fed. Appx. 279, 282 (10th Cir.2003) (internal citations omitted); see also Beedle v. Wilson, 422 F.3d 1059, 1073–74 (10th Cir.2005) (“In order to impose supervisor liability under § 1983, it is not enough for a plaintiff to show a defendant was in charge of other state actors who actually committed the violation. Rather, the plaintiff must establish a deliberate, intentional act by the supervisor to violate constitutional rights.” (internal quotation omitted)).
“Supervisors are only liable under § 1983 for their own culpable involvement in the violation of a person’s constitutional rights.” Serna v. Colo. Dep’t of Corrs., 455 F.3d 1146, 1151 (10th Cir.2006) (internal quotations and citations omitted). A plaintiff must establish a “deliberate, intentional act by the supervisor to violate constitutional rights. In short, the supervisor must be personally involved in the constitutional violation, and a sufficient causal connection must exist between the supervisor and the constitutional violation.” Id. “Because mere negligence is not enough to hold a supervisor liable under § 1983, a plaintiff must establish that the supervisor acted knowingly or with deliberate indifference that a constitutional violation would occur.” Id.
4. Analysis In the parties’ pretrial order, plaintiffs Williams was aware of allegedly discriminatory practices (unequal discipline, denial of positions and training opportunities, and denial of transfer requests) and ignored them, despite having ultimate responsibility for policies and practices in the WPD. (Doc. 142 at 6.) The pretrial order also alleges that Chief Williams told officers to dig up information on plaintiffs. (Doc. 142 at 7.) Finally, with respect to plaintiff Plush, the pretrial order alleges Chief Williams “made” officer Tucker report alleged misconduct of Plush and initiated “several complaints” against Plush after her litigation was filed. (Doc. 142 at 7.)
Plaintiffs as a group have failed to create a genuine issue of material fact with regard to Chief Williams’ personal involvement in any of the alleged acts of discrimination asserted by plaintiffs. In addition, plaintiffs have not shown how Chief Williams’ conduct was intentionally or purposefully discriminatory.
i. Semsroth *38 Semsroth does not allege that Chief Williams was personally involved in any action against her. As stated above, this failure is fatal to Semsroth’s personal capacity claims against Chief Williams.
ii. Voyles In the pretrial order, Voyles alleged that Chief Williams was involved in unequal discipline against her because he has never
26

Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2007)
approved a penalty for a violation of WPD regulation 5.802 that was the same as the discipline Voyles was given. (Doc. 142 at 12.) The uncontroverted facts show, however, that Voyles received her discipline because of a violation of WPD regulation 3.911, while the male officers Voyles compares herself to received their discipline because they violated WPD regulation 5.802. As a result, although Chief Williams may have ultimately approved discipline that was given to Voyles, Voyles has not alleged any facts showing Chief Williams was personally involved in discriminatory action taken against her.
iii. Warehime Warehime does not allege that Chief Williams was personally involved in any action against her. As with plaintiff Semsroth, Warehime’s failure to allege a genuine issue of material fact with respect to Chief Williams’ personal involvement in any action against her is fatal to Warehime’s personal capacity claims against Chief Williams.
iv. Plush Plush makes the allegation that Chief Williams told officers to “find what they can” on plaintiffs and supports this assertion by reference to three investigations of her conduct at the WPD that were instigated shortly after her lawsuit was filed.17 Chief Williams’ motion for summary judgment asserts, by way of affidavit from Chief Williams, that Chief Williams did not give such a directive. (Doc. 155 at 20 ¶ 142 (citing Williams’ Affidavit, Exh. 27).)
Plush attempts to controvert Chief Williams’ statement by citing her deposition testimony, an incident report filed by officer Tucker, and an officer’s report of the investigation of the incident reported by officer Tucker. (Doc. 169 at 12–13 ¶ 142.) These citations do not controvert Williams’ statement that he did not give a directive for other officers to “dig up” information on Plush. The cited deposition testimony states only that Plush believes she was retaliated against and that deputy chief Stolz initiated investigations against her. The exhibits also do not establish that Chief Williams directed officers to dig up information on Plush. Rather, they are simply officer Tucker’s incident report describing the writing on his truck and the “Officer’s Report” from sergeant Chaney detailing his investigation of the incident. Neither exhibit indicates in any way that Chief Williams asked his officers to “dig up dirt” on plaintiffs in retaliation for the filing of their lawsuit.
The officer’s report does indicate that officer Tucker reported that Chief Williams asked officer Tucker to make his incident report after seeing officer Tucker’s truck with the comments on the windows at an in-service they both attended. The report also states, however, that deputy chief Stolz requested the actual investigation into the matter. Regardless, Chief Williams only personal involvement in any disciplinary action taken by the WPD against Plush was asking an officer who had inappropriate writing on his truck windows to make an incident report about the officer who had written the comments. There is no evidence that Chief Williams was personally involved in any other disciplinary action taken against Plush. Plush does not even allege that the other incidents for which she was investigated shortly after filing her lawsuit were the result of personal involvement by Chief Williams.
*39 As a result, Plush has failed to create a genuine issue of material fact with respect to Chief Williams’ personal involvement in any discrimination against her which violated her equal protection rights. Plush’s claims brought via § 1983 fail.
IV. CONCLUSION Defendants’ motion for summary judgment (Doc. 154) is GRANTED. The clerk is ordered to enter judgment pursuant to Rule 58. Defendants’ motions to strike plaintiffs’ experts (Docs.137, 139) are denied as moot.
A motion for reconsideration of this order pursuant to this court’s Rule 7.3 is not encouraged. The standards governing motions to reconsider are well established. A motion to reconsider is appropriate where the court has obviously misapprehended a party’s position or the facts or applicable law, or where the party produces new evidence that could not have been obtained through the exercise of reasonable diligence. Revisiting the issues already addressed is not the purpose of a motion to reconsider and advancing new arguments or supporting facts which were otherwise available for presentation when the original motion was briefed or argued is inappropriate. Comeau v. Rupp, 810 F.Supp. 1172 (D.Kan.1992). Any such motion shall not exceed five pages and shall strictly comply with the standards enunciated by this court in Comeau v. Rupp. The response to any motion for reconsideration shall not exceed five pages. No reply shall be filed.
27

Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2007) IT IS SO ORDERED.

Parallel Citations

105 Fair Empl.Prac.Cas. (BNA) 998

Footnotes

1

In response to a letter from the Court outlining plaintiffs’ noncompliance with the D. Kan. Local Rules for responding to

statements of uncontroverted facts in motions for summary judgment (Doc. 168), plaintiffs filed a “corrected response to

Defendants’ motion for summary judgment” (Doc. 169). It is this corrected response that the court used in analyzing defendants’

motion for summary judgment. As stated in the court’s recitation of the facts, despite the opportunity for correction, plaintiffs

failed in various ways to comply with the rules governing motions for summary judgment and responses and replies thereto.

2

Plaintiffs’ additional statement of fact number three states, in part: “If a supervisor does not find actions offensive and chooses not

to report the incident, there will be no records of whether such violation has occurred. (Wiley Dep. 23:22–24).” The cited

deposition testimony does not support this statement.

Following a description of how disciplinary reports move through the chain of command, the deponent, sergeant Wiley, is then

asked if he can remember a time that he forwarded a complaint to his superior but it was never moved up the chain of command.

The cited portion of the transcript states only: “Q. Which incidents—how many instances can you recall sitting here today? A.

There’s three incidents that come to mind. There may have been more.”

Obviously, the cited transcript portion, even looked at with an expansive view, does not support the statement made by

plaintiffs, either directly or by inference. Sergeant Wiley does not discuss the implications of a supervisor finding something not

offensive or the records that are made of incidents.

This is one example, of many, in which plaintiffs’ citations do not support the facts they are trying to establish.

3

Plaintiffs propound the following paragraph of facts about sergeant Wiley but never establish how he is related to any individual

plaintiff or the time frame his testimony covers. Defendants note that sergeant Wiley has been with the WPD since 1977. As a

result, it is difficult to determine the relevancy of sergeant Wiley’s testimony.

4

The court refers to the individual plaintiffs with their last name only (i.e., they are not identified by their rank within the WPD) for

ease of readability. Other employees of the WPD are identified with their rank because it is necessary in establishing the

relationship among the employees and the plaintiffs (i.e., supervisor status versus a fellow officer).

5

Defendants’ statement of uncontroverted fact, which plaintiffs agree is uncontroverted, actually states the dates from the KHRC

charge as “between October 2000 to at least November 2003.” (Doc. 155 at 2 ¶ 3.) This is an obvious misstatement, however, as

the KHRC charge states the “alleged date of incident” as “on or about October 2001, to November 22, 2003.” (Doc. 85 Exh. 2.)

6

As noted above, the only plaintiffs bringing Title VII claims against the City are Semsroth, Warehime and Voyles.

7

Plaintiffs make a brief argument that the “inexorable zero” concept should be applied to their disparate treatment claims.

Defendants are correct in their reply, however, that this concept is not applicable to the facts underlying this litigation. The

inexorable zero concept has been described by the Tenth Circuit as follows: “Under certain circumstances an inference of

discrimination may sometimes be drawn from statistical evidence that no member of a protected group has ever occupied a

particular job or position.” Marion v. Slaughter Co., No. 98–6286, 1999 WL 1267015 (10th Cir. Dec. 29, 1999). As expressly

stated, this concept is limited and no plaintiff here has been denied a position which no woman has ever been assigned.

Plaintiffs also attempt to assert that the statistics they propound should be used as evidence for their disparate treatment claims.

Plaintiffs do not, however, analyze for the court which statistics are applicable to which claims and do nothing to show the court

how the statistics mentioned are relevant to the disparate treatment claims that they have exhausted.

8

Regarding an allegation of a racially hostile work environment, the Tenth Circuit recently stated in Herrera v. Lufkin Indus., 474

F.3d 675, 680 (10th Cir.2007), that “[a] plaintiff does not make a showing of a pervasively hostile work environment by

demonstrating a few isolated incidents of racial enmity or sporadic racial slurs. Instead, there must be a steady barrage of

opprobrious racial comments.” (internal quotation omitted). This makes it clear that to survive summary judgment on a hostile

work environment claim, a genuine issue of material fact must exist as to a consistently offensive environment.

9

The court realizes that “the severity and pervasiveness evaluation is particularly unsuited for summary judgment because it is

‘quintessentially a question of fact.’ “ O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1098 (10th Cir.1999). However, when a

plaintiff makes allegations which, even if believed by a jury, could not constitute a severe and hostile work environment, the court

may enter summary judgment against the plaintiff.

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Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2007)

10

Furthermore, the Court has previously found that exhausted incidents one, two, and three are not violations of Title VII. Croy v.

Cobe Laboratories, Inc., 345 F.3d 1199, 1203 (10th Cir.2003) (finding that because the plaintiff did not establish any actionable

acts of discrimination within the limitations period, the doctrine of continuing violations did not apply). Semsroth has failed to

create a genuine issue of material fact with respect to her hostile work environment claim.

11

“The hostile work environment underlying a Title VII claim may include acts taking place after the plaintiff files an EEOC charge

if those acts contribute to the same hostile work environment that existed during the filing period.” Duncan, 397 F.3d at 1310.

12

If a plaintiff alleges that the materially adverse action is the hostile work environment, then additional considerations must be

made. “[T]he complained-of harassment must be sufficiently severe to qualify as a materially adverse action under Title VII. In

addition, to succeed on a retaliation claim based on a hostile work environment, a Title VII plaintiff must present evidence that

supervisory or management personnel either 1) orchestrated the harassment of the plaintiff by other employees, or 2) knew about

the harassment and acquiesced in such a manner as to condone it. The behavior complained of must render the workplace

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.” McGowan, 472 F.3d at 743 (internal quotations and citations

omitted). Plaintiffs do not make such a claim.

13

Plaintiffs devote multiple pages of their response brief to a discussion of a mixed-motive proof of pretext. (See Doc. 169 at 39–43.)

As discussed above, plaintiffs failed to establish a prima facie case on their generalized unequal treatment claims, so the

application of the mixed-motive analysis was not necessary. With respect to plaintiffs’ retaliation claims, Semsroth is the only

plaintiff who makes a prima facie showing, thus making the McDonnell Douglas burden shifting framework and a showing of

pretext by plaintiffs relevant.

Plaintiffs argue that the Supreme Court’s holding in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), changed the familiar

McDonnell Douglas framework. Plaintiffs ask the court to remove the pretext analysis from the summary judgment analysis.

(Doc. 169 at 43.) Defendants point out that the Supreme Court has continued to utilize the McDonnell Douglas framework,

citing Raytheon Co. v.. Hernandez, 540 U.S. 44 (2003).

This court is not prepared to disregard at the summary judgment stage of the proceedings the over thirty-year reign of

McDonnell Douglas and its progeny in cases of discrimination based on indirect evidence. The court thinks it doubtful that the

Supreme Court intended such consequence without the slightest reference to McDonnell Douglas in its Desert Palace opinion.

The court instead views the holding of Desert Palace as limited to the new rule of law expressly set forth therein: “[i]n order to

obtain [a mixed-motive] instruction under § 2000e–2(m), a plaintiff need only present sufficient evidence for a reasonable jury

to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or national origin was a motivating factor for

any employment practice.’ “ Desert Palace, 123 S.Ct. at 2155.

14

A pattern or practice claim asserts that it was the employer’s standard operating procedure to discriminate against employees on

the basis of a protected characteristic. Thiessen, 267 F.3d at 1105.

15

The cited portion of Dr. Bardwell’s report does not match the number used by plaintiffs regarding the “level required to establish a

prima facie case.” Dr. Bardwell’s report states that the gender disparity in the number of females investigated “is statistically

significant at the 0.011 level, exceeding the 0.05 threshold.” Regarding the gender disparity in the number of females whose

violations were found sustained, Dr. Bardwell stated that the “disparity is statistically significant at the < 0.001 level, far exceeding

the 0.05 threshold.”

Beyond not placing the statistics in the record, plaintiffs make no attempt whatsoever to establish the significance of these

statistics. Plaintiffs cite no case law or any legal authority on this point. The court will not construct plaintiffs arguments for

them when plaintiffs, who are represented by counsel, have made no effort in this regard.

16

The parties’ pretrial order brings claims under § 1983 against Chief Williams in his personal capacity. (See Doc. 142 at 40.) All

plaintiffs, i.e., Semsroth, Voyles, Warehime, and Plush, bring these claims.

17

The other plaintiffs make the same allegation, but do not support the allegation with any evidence of investigations into their

conduct that were instigated after this alleged directive was given.

29

 
 Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2005)

2005 WL 2708337 Only the Westlaw citation is currently available.
United States District Court, D. Kansas.
Greta SEMSROTH, Kim Warehime, Sara Voyles, and Heather Plush, Plaintiffs, v.
CITY OF WICHITA and Chief Norman Williams, Defendants.
No. Civ.A. 04–1245 MLB. | Oct. 21, 2005.
Attorneys and Law Firms
Lawrence W. Williamson, Jr., Shores, Williamson & Ohaebosim, LLC, Wichita, KS, for Plaintiffs.
Kelly J. Rundell, City of Wichita, Kansas–Law Department, Wichita, KS, for Defendants.
Opinion
MEMORANDUM AND ORDER
BELOT, J.
I. INTRODUCTION *1 This case comes before the court on plaintiffs’ motion for reconsideration of this court’s order, (Doc. 87), denying plaintiffs’ motion to certify a class action. Also before the court is plaintiffs’ response to this court’s order to show cause (Doc. 91). Defendants responded to plaintiffs’ motion for reconsideration, (Doc. 89), and the matter is ripe for decision.
II. Motion to Reconsider Plaintiffs’ motion to reconsider is governed by Local Rule 7.3(b), which states in pertinent part, “A motion to reconsider shall be based on (1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice.”In the order denying class certification, the court specifically informed the parties that any motion to reconsider must “strictly comply with” Comeau v. Rupp, 810 F.Supp. 1172 (D.Kan.1992). (Doc. 137 at 9.) In Comeau, this court said,
The standards governing motions to reconsider are

well established. A motion to reconsider is appropriate where the court has obviously misapprehended a party’s position or the facts or applicable law, or where the party produces new evidence that could not have been obtained through the exercise of due diligence. Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan.1990); Taliaferro v. City of Kansas City, 128 F.R.D. 675, 677 (D.Kan.1989).“[R]evisiting the issues already addressed ‘is not the purpose of a motion to reconsider,’ and ‘advanc[ing] new arguments or supporting facts which were otherwise available for presentation when the original summary judgment motion was briefed’ is likewise inappropriate.”Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.), cert. denied, 506 U.S. 828, 113 S.Ct. 89, 121 L.Ed.2d 51 (1992).
Comeau, 810 F.Supp. at 1174–75.
Plaintiffs assert that the court denied their motion without “undertaking a rigorous analysis as required by Fed.R.Civ.P. 23” and that the court incorrectly determined that plaintiffs had not satisfied the single-file rule for the class. (Doc. 87 at 2–3). These arguments do not satisfy the requirements of Rule 7.3 or of Comeau.

Rule 23

The court did not conduct the analysis under Rule 23 for one simple reason: the court lacks jurisdiction over the purported Title VII class action.1 As explained in the order (Doc. 86 at 2), “[e]xhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title VII.”Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir.1996). The court determined that none of the named plaintiffs who purport to represent the class exhausted their administrative remedies by adequately asserting class-wide claims before the EEOC.2Nevertheless, plaintiffs’ motion to reconsider states:

1

Plaintiffs also filed a renewed motion to certify the

class which includes a request to certify their 42 U.S.C.

§ 1983 claim against Williams. (Doc. 88 at 2). This is

an acknowledgment that plaintiffs’ 70–page motion to

certify was limited to their Title VII claims. (Doc. 71 at

9 and 59). In other words, plaintiffs did not seek to

certify their section 1983 claim. Moreover, the First

Amended Class Action Complaint only alleges a

section 1983 claim by plaintiffs individually and not the

class. (Doc. 53 at 25–26). This case was filed in 2004

and plaintiffs have been afforded extraordinary latitude

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Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2005)

and time to plead and do discovery with respect to their purported class action. It thus would be contrary to the letter and spirit of Fed.R.Civ.P. 1 to permit, at this late date, class action certification of any claims by any plaintiff under any theory. The court will not permit this case to proceed by a timetable dictated by plaintiffs’ attempts to correct failures to bring their claims in a timely manner. Plaintiffs’ renewed motion to certify (Doc. 88) is denied.

2

One of the named plaintiffs, Heather Plush, did not

even make a claim to the EEOC before filing this case.

See Part II, infra.

All charges allege that the discrimination was continuous and ongoing. (Doc. 85, Ex. 2 at 5; Exhibit 4 at 2; Doc. 74, exh. 21). Additionally, Plaintiff Semsroth stated that she has endured at the hands of “systematic and ongoing discrimination.” (Id. at pg. 6). Systematic is inapposite to isolated. Moreover, the EEOC coded Plaintiff Semsroth’s charge as a “terms and conditions” complaint. (Doc. 85, Ex. 2 at 5). Heather Plush’s complaints were about retaliation as well as terms and conditions of her employment, thus, the “same circumstances”. *2 (Doc. 87 at 4). Out of an abundance of caution and forthelasttime, the court will address these assertions. Plaintiff Semsroth’s EEOC charge stated that “[t]hese incidents are just an overview of the systematic and ongoing discrimination I endure.”(Doc. 85, exh. 1 at 5) (emphasis supplied). In response to the EEOC form question that asked “what was the most recent date you experienced this harm,” all plaintiffs remarked that they were suffering “continuous and ongoing discrimination and retaliation for the claim.”(Docs. 74, exh. 21 at 2, 85, exhs. 1 at 2, 3 at 2) (emphasis supplied). While all charges used terms that indicated an ongoing problem, the charges failed to allege that the problem affected anyone other than the particular claimant.
Plaintiffs assert that no other court since 1975 has drawn such a harsh conclusion. Plaintiffs are incorrect and have failed to cite a single case that has allowed a class action to proceed under the single-filing rule when the EEOC charges failed to allege that anyone other than the claimant suffered discrimination. Plaintiffs citation to Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1110 (10th Cir.2001), does not support their assertion. The plaintiff in Thiessen alleged the following in his EEOC charge:
Mr. Thiessen also alleges that “employment decisions” for “persons similarly situated” to Mr. Thiessen show a “stark pattern unexplainable on grounds other than age” and that “the company has an express but covert policy

of discriminating against older white employees.”Mr. Thiessen goes on to explain, albeit briefly, the blocker policy and how “GE Capital has a pattern and practice of removing employees identified as ‘Blockers’ from their positions.”
Thiessen v. General Elec. Capital Corp., 996 F.Supp. 1071, 1079 (D.Kan.1998). Contrary to plaintiffs’ assertion, the court’s determination that Thiessen’s EEOC charge was sufficient to satisfy the single filing rule was not based on a “conclusory one-liner.” (Doc. 87 at 4).
Accordingly, the purported class could not “piggyback” their claims under the single-filing rule set out in Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1194–95 (10th Cir.2004). Therefore, the court was not required to perform a Rule 23 analysis when the court lacked jurisdiction over the purported class action.
ADEA and Title VII
Finally, plaintiffs attack the use of ADEA cases in the court’s analysis and assert that “unlike the ADEA, under Title VII, a person does not have to be a named party to receive the benefits of the class.”(Doc. 87 at 2–3). Plaintiffs then quote an opinion of the Fourth Circuit for the following proposition:
One of the two Title VII cases, in a string of ADEA cases cited by the court in support of its conclusion that plaintiffs’ authorities are superseded, White v. BFI Waste Servs., LLC, 375 F.3d 288, 293 (4th Cir.2004), expressly states that “the ‘single-filing rule,’ ... allows plaintiffs who have not exhausted the administrative requirement of filing with the EEOC to join in a lawsuit with other plaintiffs who have exhausted the requirement and that ... White simply has not joined in a lawsuit brought by those plaintiffs who filed the earlier EEOC charge from which White would like to benefit.”(emphasis in original).Communications Workers of America v. New Jersey Dept. of Personnel, 282 F.3d 213, 217 (3rd Cir.2002); Greene v. City of Boston, 204 F.Supp.2d 239 (D.Mass.2002) (dismissing plaintiff’s individual claim).
*3 (Doc. 87 at 3, n. 2).
The court certainly hopes that plaintiffs’ counsel is not attempting to mislead the court. The entire quotation from the Fourth Circuit case states as follows:
The “single-filing rule,” as applied by those circuits which have adopted it, allows plaintiffs who have not exhausted the
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Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2005)

administrative requirement of filing

with the EEOC to join in a lawsuit

with other plaintiffs who have

exhausted the requirement,

provided that all plaintiffs’ claims

are substantially similar and that

the EEOC charge itself gave notice

of the charge’s collective nature.

See,e.g.,Bettcher v. Brown Schools,

Inc., 262 F.3d 492, 494–95 (5th

Cir.2001) (setting forth the

requirements for invocation of the

“single-filing rule”); Tolliver v.

Xerox Corp., 918 F.2d 1052, 1056

(2d

Cir.1990)

(same);

seealsoDalton v. Employment

Security Comm’n, 671 F.2d 835,

838 (4th Cir.1982) (noting that the

Fifth Circuit had applied such a

rule in Crawford v. United States

Steel Corp., 660 F.2d 663, 665–66

(1981), but noting also that the

Ninth Circuit had declined to apply

such a rule in Inda v. United Air

Lines, Inc., 565 F.2d 554, 558–59

(9th Cir.1977)). By its terms, this

rule would be entirely inapplicable

here even if our circuit were to

adopt it: White simply has not

joined in a lawsuit brought by those

plaintiffs who filed the earlier

EEOC charge from which White

would like to benefit. Cf.Bettcher,

262 F.3d at 495 (rejecting a

plaintiff’s attempt to invoke the

“single-filing rule” because the

individual who filed the EEOC

charge did not himself bring suit).

Rather, White has brought suit on

his own behalf.

White v. BFI Waste Services, LLC, 375 F.3d 288, 293–294 (4th Cir.2004) (emphasis supplied). The court in White did not apply the single-filing rule since the plaintiff had already filed his own EEOC charge and a complaint. The circuit determined that “[w]hat White truly seeks is not to invoke the “single-filing rule,” but some form of “relation back” between his claim and the earlier EEOC charge filed by other employees. Id. Moreover, the Fourth Circuit’s interpretation of the rule is identical to that of this court’s order. The other two cases cited by plaintiffs also apply the single-filing rule as identified by the court’s prior order.

Plaintiffs’ assertion that the court was incorrect in using authority from the ADEA arena further demonstrates that plaintiffs reading of Foster is critically flawed. In Foster,

the Tenth Circuit clearly stated that the single filing rule is applicable in both the ADEA and Title VII cases. SeeFoster, 365 F.3d at 1197 (in “Title VII and the ADEA [cases], the federal courts have universally recognized an exception to the individual filing rule ... [t]his exception to the individual filing requirement is known alternatively as the “ ‘single filing rule” ’).Foster also explained:
As the ADEA and Title VII have virtually identical requirements with respect to the filing of EEOC charges, Title VII cases are applicable here. SeeTerry v. Ashcroft, 336 F.3d 128, 151 (2d Cir.2003) (noting that “the administrative exhaustion requirement is the same under the ADEA as it is under Title VII” and that, as a result, judicially-recognized exceptions to the Title VII filing requirement “also apply to claims brought pursuant to the ADEA”); seealsoZipes v. Trans World Airlines, Inc., 455 U.S. 385, 395 n. 11, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (observing that “when Congress in 1978 revised the filing requirement of the Age Discrimination in Employment Act of 1967,” it “was modeled after Title VII”).
*4 Id. at 1195, n. 1. Therefore, it was entirely proper for the court to consider ADEA cases in order to determine if plaintiffs had exhausted their administrative remedies.
For these reasons and those stated in the court’s previous order (Doc. 86), plaintiffs’ motion to reconsider is denied.

III. Show Cause Order In the order denying plaintiffs’ class certification (Doc. 86), the court ordered plaintiffs to show cause why their section 1981 claim should not be dismissed for failure to state a claim and why plaintiff Plush’s Title VII claim should not be dismissed for lack of jurisdiction. (Doc. 86 at 16). Plaintiffs have responded that dismissal of their section 1981 claim is warranted. Plaintiffs’ 42 U.S.C. § 1981 claim is accordingly dismissed.3

3

The court is concerned that this claim was not

voluntarily dismissed by plaintiffs at an earlier stage in

this action. Plaintiffs concede that they are not

minorities. Instead of voluntarily dismissing a claim

that has no basis in law, plaintiffs proceeded to assert

that their section 1981 claim should be certified by this

court. (Doc. 85 at 2). In the future, the court cautions

plaintiffs’ counsel to adequately inspect his filings to

save both counsel and the court time.

In addressing Plush’s Title VII claim, Plush attempts to convince this court that all plaintiffs were somehow sandbagged because the issue of exhaustion was not raised in any motion to dismiss. Regardless of whether defendants could have raised this issue on a motion to
3

Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2005)

dismiss, the issue was raised in response to plaintiffs’ motion to certify. The court reminds plaintiffs that “a court may dismiss a case for lack of jurisdiction at any stage of the proceeding.”Basso v. Utah Power & Light Co., 495 F.2d 906, 910 (10th Cir.1974).
Plush argues that her Title VII claim should not be dismissed for lack of jurisdiction based on the reasons set forth in plaintiffs’ motion for reconsideration. Since the court has found that those arguments lack merit, supra, plaintiff Plush’s Title VII claim will be dismissed.
The court notes that Plush had an opportunity to establish why she, as an individual plaintiff, satisfied the single filing rule under either test set out in Foster, but failed to do so. The court is under no obligation to perform her research nor make arguments on her behalf. SeePhillips v. Hillcrest Med. Ctr., 244 F.3d 790, 800 (10th Cir.2001). However, the court concludes that in the abundance of caution it will address any potential arguments as to whether plaintiff Plush’s claims satisfy the single filing rule.
Plush alleges that on two separate occasions in May 2004 she was verbally reprimanded by Sergeant Hungria and dismissed from the crime scene because she was no longer needed. (Doc. 53 ¶¶ 79–80). Plush claims she was also subjected to discipline when she asked clarification from a supervisor on the scene of a call, requested a transfer from Sergeant Hungria, and that complaints were filed against her in retaliation for this action against defendants. (Doc. 53 ¶ ¶ 81–83).
As explained in this court’s prior order, the broader test of the single filing rule requires that any single plaintiff who wishes to piggy-back on the EEOC charge of another named plaintiff must demonstrate that “their claims arose out of the samecircumstances and occurred within the same general time frame.”Foster, 365 F.3d at 1199 (emphasis supplied). While all plaintiffs have made a general allegation in their EEOC charges of retaliation, Plush’s allegations occurred after the filing of the complaint. Therefore, Plush’s allegations of retaliation did not arise out of the same circumstances nor occur within the same time frame as the other named plaintiffs.
*5 Next, the court will consider Plush’s allegations of May 2004. Warehime was the only plaintiff to make an allegation that occurred in 2004; all allegations of the other plaintiffs occurred in the years prior to 2004. Warehime’s allegation was that she was interrogated in January 2004 for attending a luncheon. (Doc. 74, exh. 21 at 2). This allegation does not arise out of the same circumstances nor occur within the same general time frame as Plush’s allegations of mistreatment in May 2004.

Plush also alleges that she was subjected to discipline by requesting clarification from a call. After a review of the EEOC charges made by the other plaintiffs, the court finds that these EEOC charges do not make a similar allegation. Plush asserts that she was denied a transfer, similar to Warehime. While Warehime did allege in the complaint that she was denied a transfer (Doc. 53 ¶ 71), she failed to make this allegation in her EEOC charge. As such, the EEOC was not provided notice of this allegedly discriminatory conduct. Since this allegation was not included in Warehime’s charge, the court cannot find that Plush’s allegation arose out of the same circumstances or time frame.
Moreover, for the same reasons set out in the court’s prior order, Plush cannot satisfy the narrower test set out in Foster.The charges filed with the EEOC did not give the EEOC or the employer notice that the alleged discrimination encompassed individuals other than those who filed the charges.Foster, 365 F.3d at 1198.

Accordingly, plaintiff Plush’s Title VII claims are dismissed, without prejudice, for lack of jurisdiction.4

4

Plaintiff Plush’s request to stay the proceedings until

her administrative remedies are complete is denied.

IV. CONCLUSION Plaintiffs’ motion for reconsideration (Doc. 87) is denied.5Plaintiffs’ section 1981 claim is dismissed, with prejudice. Plaintiff Plush’s Title VII claim is also dismissed, without prejudice. This case is now returned to the magistrate judge for consideration of any pretrial issues relating to plaintiffs’ remaining non-class action claims and defendants’ defenses.

5

Plaintiffs also request that the court certify its order

denying plaintiffs’ motion for class certification.

Plaintiffs, however, fail to cite any authority that would

allow the court to certify the order under Fed.R.Civ.P.

54(b). Failure to make argument or cite authority

constitutes abandonment. Boone v. Carlsbad

Bancorporation, Inc., 972 F.2d 1545, 1554 (10th

Cir.1992). Plaintiffs’ motion (Doc. 87) is denied.

IT IS SO ORDERED. Dated this 20th day of October 2005, at Wichita, Kansas.
	  

4

Semsroth v. City of Wichita, Not Reported in F.Supp.2d (2005) 5

 
 Semsroth v. City of Wichita
United States District Court for the District of Kansas October 25, 2004, Decided; October 25, 2004, Filed
CIVIL ACTION No. 04-1245 MLB

Reporter: 2004 U.S. Dist. LEXIS 30727 GRETA SEMSROTH, KIM WAREHIME, SARA VOYLES, AND HEATHER PLUSH, Plaintiffs, v. CITY OF WICHITA, CITY OF WICHITA POLICE DEPARTMENT, CHIEF NORMAN WILLIAMS individually and in his official capacity, Defendant.
Subsequent History: Motion denied by, Claim dismissed by, Remanded by Semsroth v. City of Wichita, 2005 U.S. Dist. LEXIS 26001 (D. Kan., Oct. 20, 2005)
Prior History: Semsroth v. City of Wichita, 2004 U.S. Dist. LEXIS 30726 (D. Kan., Oct. 14, 2004)
Counsel: [*1] For Greta Semsroth, On behalf of herself and all others similarly situated, Kim Warehime, On behalf of herself and all others similarly situated, Sara Voyles, On behalf of herself and all others similarly situated, Heather Plush, On behalf of herself and all others similarly situated, Plaintiffs: Lawrence W. Williamson, Jr., LEAD ATTORNEY, Williamson Law Firm, LLC, Kansas City, KS.
For Wichita City of, District of Kansas, Wichita Police Department, Chief Norman Williams, Individually and in his official capacity, Defendants: Kelly J. Rundell, LEAD ATTORNEY, City of Wichita, Kansas - Law Department, Wichita, KS.
Judges: Monti L. Belot, UNITED STATES DISTRICT JUDGE.
Opinion by: Monti L. Belot
Opinion
MEMORANDUM AND ORDER
I. INTRODUCTION
Plaintiffs, female officers of the City of Wichita's ("city") police department, filed suit against the city, the department, and Chief Norman Williams in his individual and official capacity, alleging a multitude of violations of federal and state law. Plaintiffs' claims allege sexual harassment, hostile work environment, gender discrimination, violations of equal protection and due process, and various state law tort claims.

This case comes before the court on defendants' various motions [*2] to dismiss. Defendants have moved to dismiss Chief Williams in his official capacity, the department, plaintiffs' claim of deprivation of their liberty interest in reputation, and all state tort claims. (Docs. 7, 9, 14, 16). The motions have been fully briefed and are ripe for decision. For the following reasons, the motions to dismiss are GRANTED.
II. MOTION TO DISMISS STANDARDS: FRCP 12(B)(6)
The standards this court must utilize upon a motion to dismiss are well known. This court will dismiss a cause of action for a failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts that would entitle legal relief or when an issue of law is dispositive. See Ford v. West, 222 F.3d 767, 771 (10th Cir. 2000); Robinson v. Kansas, 117 F. Supp.2d 1124, 1129 (D. Kan. 2000). All wellpleaded facts and the reasonable inferences derived from those facts are viewed in the light most favorable to plaintiff. See Ford, 222 F.3d at 771; Davis v. United Student Aids Funds, Inc., 45 F. Supp.2d 1104, 1106 (D. Kan. 1998). Conclusory allegations, however, have no bearing upon this court's consideration. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (stating [*3] that "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based"); Overton v. United States, 74 F. Supp. 2d 1034, 1041 (D. N.M. 1999) (citing Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989)). In the end, the issue is not whether plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claims. See Robinson, 117 F. Supp.2d at 1129.
III. FACTS1
Plaintiffs allege unfair treatment in the department on the basis of their gender. Specifically, plaintiffs claim that, as a result of their gender, defendants have denied them job assignments, promotional opportunities, supervisory positions, training, equal pay, bonuses, and other benefits of employment. Plaintiffs also allege that defendants have consistently ignored complaints about the hostile work environment, inadequately investigated female officers'

1 The court will not restate all facts as presented in the complaint, but rather list those facts that are pertinent to resolving the issues currently before the court.

2004 U.S. Dist. LEXIS 30727, *3

Page 2 of 5

complaints, and failed to take action to eliminate unlawful suit against the entity." Kentucky v. Graham, 473 U.S. 159,

working conditions. Plaintiffs claim to have been 165-66, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). Therefore,

harassed [*4] by explicit and crude remarks about the female a suit naming both the entity and the official is redundant.

body, labeled "bitches," and received comments about their Eberle v. City of Newton, 289 F. Supp. 2d 1269, 1280 (D.

make-up. (Doc. 1 at 4 P 6). Plaintiff Semsroth allegedly has Kan. 2003). Plaintiffs concede that the official capacity claim

received negative remarks in her personnel file regarding against Chief Williams is inappropriate. (Doc. 22 at 2.)

conflicts with other male officers. (Doc. 1 at 19 P 62). Accordingly, defendants' motion is GRANTED with respect

Plaintiff Warehime claims to have been denied transfers and to claims brought against Chief Williams in his official

promotions on numerous occasions. (Doc. 1 at 21 P 71-72). capacity. Conversely, the claims against Chief Williams in his

Plaintiff Plush says she has been denied transfers during her individual capacity are not affected by this ruling, except as

two years of service for the Department. (Doc. 1 at 22 P 78). noted below.

On February 20, 2004, plaintiffs sent a letter to the attention of Chief Williams and a carbon copy to the mayor and the city manager of Wichita. (Doc. 22 exh. 1). The letter's avowed purpose was to notify defendants of plaintiffs' claims of "sexual harassment, disparate treatment and hostile work environment." Id. The facts stated in the letter reference the unequal treatment of women in the department allegedly suffered at the hands of various unnamed officers and supervisors. The letter is devoid of any specific dates and times of the alleged offenses, but rather seems to allege an environment of ongoing discrimination. Plaintiffs also remind defendants of their obligation [*5] to comply with the laws of Title VII. At the conclusion of the letter, plaintiffs demand an amount of $ 1,500,000 to compensate for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.
Defendants did not respond to any claims set forth in the letter. Therefore, plaintiffs filed their complaint in this court on July 29, 2004. Defendants have filed four separate motions to dismiss. Defendants move to dismiss the department (Doc. 7), Chief Williams in his official capacity (Doc. 9), the first cause of action as to Chief Williams in his personal capacity (Doc. 9), the fourth cause of action (Doc. 16), and all state law tort claims (Doc. 14). For the following reasons, all four separate motions to dismiss are GRANTED.
IV. ANALYSIS
A. City of Wichita Police Department
Plaintiffs name both the city and the department as defendants in the complaint. A municipality's police department is not a separate suable entity and, as such, the complaint must be dismissed as to the department. Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985). Plaintiffs concede that naming the department is inappropriate. (Doc. 22 at 2). Accordingly, defendants' [*6] motion to dismiss the department is GRANTED.
B. Official Capacity Claim

C. First Cause of Action as to Chief Williams
Plaintiffs' first cause of action alleges a violation of Title VII of the Civil Rights Act. Since "personal capacity suits against individual supervisors are inappropriate under Title VII," Haynes v. Williams, 88 F.3d 898, 901 (10th Cir. 1996), plaintiffs have also conceded that dismissal is proper. (Doc. 22 at 2). Therefore, defendants' motion to dismiss the first cause of action [*7] as to Chief Williams in his personal capacity is GRANTED.
D. Fourth Cause of Action
For their fourth cause of action, plaintiffs assert that they have a protected liberty interest in their reputation, and that the city and Chief Williams deprived them of that liberty interest without due process in violation of the Fifth and Fourteenth Amendments to the United States Constitution. In order to trigger due process requirements, plaintiffs must first establish that they suffered a deprivation of a protected liberty interest. Fed. Lands Legal Consortium ex rel. Robart Estate v. United States, 195 F.3d 1190, 1195 (10th Cir. 1999). To establish that defendants deprived them of a protected liberty interest in their reputation, plaintiffs must show that "(1) the defendant made a statement impugning his or her good name, reputation, honor, or integrity; (2) the statement was false; (3) the defendant made the statement in the course of termination proceedings or the statement foreclosed future employment opportunities; and (4) the statement was published." Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 526 (10th Cir. 1998).
The only allegations of impugning statements found in the record are occasions [*8] on which plaintiffs allegedly were called "bitches" by other officers (not by Chief Williams) and where Semsroth received a negative remark in her employment file. First of all, the court must accept as true all allegations in the complaint for purposes of a motion to dismiss. That being said, the court can infer that plaintiffs believe that the "bitches" remarks are false. On the other hand, Semsroth does not allege that the negative

Plaintiffs sue Chief Williams in both his individual and official capacity. An official capacity suit is "to be treated as a

2004 U.S. Dist. LEXIS 30727, *8

Page 3 of 5

remark in her file is false; rather she claims that the male

officers involved in the same altercations have not received

Any person having a claim against a municipality

any negative remarks in their files.

which could give rise to an action

However, even if plaintiffs could show all impugning statements to be false, there must be a showing that the statements were entangled with their interest in employment. Valdez v. New Mexico, 109 Fed. Appx. 257, 2004 U.S. App. LEXIS 18616, *13-14 (10th Cir. 2004) (citing Workman v. Jordan, 32 F.3d 475 (10th Cir. 1994)). The Tenth Circuit has clearly announced "defamation, standing alone, [is] not sufficient to establish a claim for deprivation of a liberty interest." Renaud v. Wyoming Dep't of Family Servs., 203 F.3d 723, 726-27 (10th Cir. 2000). Plaintiffs have failed to allege any loss that would amount to a tangible [*9] liberty interest. A general allegation that plaintiffs have a loss of employment opportunities is insufficient since "a loss of future positions [is] too speculative and too intangible to constitute a deprivation of a liberty . . . interest." Valdez, 109 Fed. Appx. 257, 2004 U.S. App. LEXIS 18616 at *13-14 (internal quotations omitted). Semsroth claims negative remarks were included in her employment file, but she has failed to allege that the remarks resulted in a loss of any tangible employment opportunities. Both Warehime and Plush have been denied transfer opportunities or promotions; however, they allege that this denial is due to their gender and not as a result of any impugning statements made by defendants.

brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action. The notice shall be filed with the clerk or governing body of the municipality and shall contain the following: (1) The name and address of the claimant and the name and address of the claimant's attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place [*11] and circumstances of the act, omission or event complained of; (3) the name and address of any public officer or employee involved, if known; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested. In the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim. The contents of such notice shall not be admissible in any subsequent action arising out of the claim. Once notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs

Moreover, fatal to plaintiffs' claim is the failure to allege any publication of the stigmatizing remarks. Publication requires that the offending government agency make the relevant information public. Asbill v. Hous. Auth. of Choctaw Nation of Okla., 726 F.2d 1499, 1503 (10th Cir. 1984). Plaintiffs allege that the name-calling occurred in the work environment and on one occasion a comment appeared in a personnel file. However, intra-governmental dissemination of information, even to other [*10] office personnel, does not amount to publication. Six v. Henry, 42 F.3d 582, 586 (10th Cir. 1994); Asbill, 726 F.2d at 1503. Lacking evidence to support publication, plaintiffs have failed to establish that any defendant deprived them of a protected liberty interest in their reputation; thus, they were not entitled to any due process protection on this matter. Fed. Lands, 195 F.3d at 1195.

first. A claim is deemed denied if the municipality fails to approve the claim in its entirety within 120 days unless the interested parties have reached a settlement before the expiration of that period. No person may initiate an action against a municipality unless the claim has been denied in whole or part. Any action brought pursuant to the Kansas tort claims [*12] act shall be commenced within the time period provided for in the code of civil procedure or it shall be forever barred, except that, if compliance with the provisions of this subsection would otherwise result in the barring of an action, such time period shall be extended by the time period required for compliance with the provisions of this subsection.K.S.A. § 12-105b(d).

Accordingly, defendants' motion to dismiss plaintiffs' fourth The primary purpose of the notice statute is to sufficiently

cause of action is GRANTED.

advise the municipality of the time and place of the events

E. State Law Tort Claims

while the occurrence is fresh in the minds of those possessing knowledge of the subject. Bradford v. Mahan, 219 Kan. 450,

Defendants move to dismiss plaintiffs' state law tort claims on

457, 548 P.2d 1223, 1230 (1976); Howell v. City of Hutchinson, 177 Kan. 722, 725-26, 282 P.2d 373

the basis of plaintiffs failure to comply with the statutory

requirements of notice set out in K.S.A. 12-105b:

2004 U.S. Dist. LEXIS 30727, *12

Page 4 of 5

(1955); Tucking v. Bd. of Comm'rs of Jefferson County, 14 emotional distress, negligent training, and failure to train, it

Kan. App.2d 442, 448, 796 P.2d 1055, 1059 (1990). "The could not properly

notice requirements in K.S.A. § 12-105b(d) are mandatory investigate those claims. Dunegan v. City of Council Grove,

and a condition precedent to bringing a tort claim against a Kan. Water Dep't, 77 F.Supp.2d 1192, 1205 (D. Kan. 1999).

municipality." Miller v. Brungardt, 916 F. Supp. 1096, 1098 Accordingly, no court has jurisdiction to hear such claims

(D. Kan. 1996).

unless proper notice was filed prior to commencing the action.

A notice filed with the municipality must substantially comply with the requirements set out in the statute. K.S.A. § 12-105b(d). Substantial compliance can only occur if

Gessner v. Phillips County Comm'rs, 270 Kan. 78, 81-82, 11 P.3d 1131, 1134 (2000). 4 Therefore, defendants' motion to dismiss is GRANTED as to counts eight, nine, and ten.

plaintiffs [*13] make an attempt to state each element of the In the alternative, plaintiffs have requested that this court

notice. Tucking, 14 Kan. App.2d at 446-47, 796 P.2d at 1058. dismiss the state claims without prejudice in order that they

"An omission of one or more relevant elements makes the may amend the complaint. Plaintiffs have failed to attach a

notice fatally insufficient." Id. at 442.

proposed amended complaint as required by this [*16] court's

Plaintiffs' notice has failed to substantially comply with K.S.A. 12-105b(d). Specifically, the letter failed to provide plaintiffs' addresses as required in element one. 2 It failed to

Rule 15.1, nor have they offered any explanation how an amended complaint, if allowed, will cure the deficiencies noted. Therefore, the motion to amend is DENIED.

provide the addresses of the public officers and employees V. CONCLUSION

involved, as required by element three. It also failed to list the

names of the officers who allegedly were involved in the In sum, defendants' motions to dismiss are GRANTED. The incidents. And, fatal to their claim, is the absence of "a state tort claims are dismissed, with prejudice.

concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of," as required in element two. K.S.A. § 12-105b(d).

A motion for reconsideration of this order pursuant to this court's Rule 7.3 is not encouraged. The standards governing motions to reconsider are well established. A motion to reconsider is appropriate where the court has obviously

Plaintiffs' letter may be sufficient to apprise defendants of any claims of employment discrimination and unequal treatment suffered at the hands of the city. However, section 12-105b(d) requires proper notice for any state tort claims, not claims based [*14] on federal law. Plaintiffs state three causes of action which are founded on state tort law, namely, intentional infliction of emotion distress, negligent training, and failure to train. 3 The letter fails to give a concise statement of the factual basis of their state tort claims. One

misapprehended a party's position or the facts or applicable law, or where the party produces new evidence that could not have been obtained through the exercise of reasonable diligence. Revisiting the issues already addressed is not the purpose of a motion to reconsider and advancing new arguments or supporting facts which were otherwise available for presentation when the original motion was briefed or argued is inappropriate. Comeau v. Rupp, 810 F. Supp. 1172 (D. Kan. 1992).

main purpose of the notice statute is to give the city an opportunity to investigate the claims and make an informed decision when determining whether to comply with the monetary demand. See Wiggins v. Housing Auth., 19 Kan. App. 2d 610, 614, 873 P.2d 1377 (1994). Since the city had no notice that plaintiffs claimed intentional infliction of

Any such motion shall not exceed three pages and shall strictly comply with the standards enunciated by this court in Comeau v. Rupp. The response to any motion for reconsideration shall not exceed three [*17] pages. No reply shall be filed.

IT IS SO ORDERED.

2 The notice also failed to list plaintiff Plush as a claimant. Therefore, her state tort claims fail as a matter of law.
3 Defendants propose that plaintiffs' claim of conspiracy to interfere with [*15] civil rights is based on state tort law since plaintiffs failed to cite the applicable provisions of the Constitution or federal statute. However, construing the pleadings in the light most favorable to plaintiffs, the court concludes that count six is a claim based on the United States Constitution.
4 Defendants, in their answer, stated that "Plaintiffs failed to comply with K.S.A. 12-105b." Plaintiffs assert that defendants cannot seek dismissal because they have not denied plaintiffs' performance with the requirements of K.S.A. § 12-105b "with particularity" as required by Fed. R. Civ. P. 9(c). Plaintiffs conveniently overlook Rule 9(c)'s requirement that performance of conditions precedent must be generally averred. Plaintiffs' complaint does not do so; indeed, it does not even mention K.S.A. 12-105b. Plaintiffs cannot complain about defendants' alleged failure (which was no failure at all) to comply with Rule 9(c) when they themselves have failed to do so.

2004 U.S. Dist. LEXIS 30727, *17 Dated this 25th day of October 2004, at Wichita, Kansas.
UNITED STATES DISTRICT JUDGE /s/ Monti Belot
Monti L. Belot

Page 5 of 5

 
 Semsroth v. City of Wichita
United States District Court for the District of Kansas October 14, 2004, Decided; October 14, 2004, Filed
Case No. 04-1245-MLB

Reporter: 2004 U.S. Dist. LEXIS 30726 GRETA SEMSROTH, on behalf of herself and all others similarly situated, et al., Plaintiffs, -vs- CITY OF WICHITA, et al., Defendants.
Subsequent History: Claim dismissed by Semsroth v. City of Wichita, 2004 U.S. Dist. LEXIS 30727 (D. Kan., Oct. 25, 2004)
Counsel: [*1] For Greta Semsroth, On behalf of herself and all others similarly situated, Kim Warehime, On behalf of herself and all others similarly situated, Sara Voyles, On behalf of herself and all others similarly situated, Heather Plush, On behalf of herself and all others similarly situated, Plaintiffs: Lawrence W. Williamson, Jr., LEAD ATTORNEY, Williamson Law Firm, LLC, Kansas City, KS.
For Wichita City of, District of Kansas, Wichita Police Department, Chief Norman Williams, Individually and in his official capacity, Defendants: Kelly J. Rundell, LEAD ATTORNEY, City of Wichita, Kansas - Law Department, Wichita, KS.
Judges: Donald W. Bostwick, U.S. MAGISTRATE JUDGE.
Opinion by: Donald W. Bostwick
Opinion
MEMORANDUM AND ORDER
On October 8, 2004, Defendants filed a Motion for Protective Order and Order in Limine (Doc. 24) accompanied by the affidavits (with attachments) of Kevin Norman and Kelly Rundell. Plaintiffs filed a Memorandum in Opposition on October 11, 2004 accompanied by the affidavit of Lawrence Williamson and correspondence between counsel. (Doc. 25.) Due to the nature of the motion, the court held oral argument on October 12, 2004.
Defendants' motion seeks an order "which permits the City of Wichita to re-enable [*2] the expiration process on the TSM system and resume normal operations, prohibits plaintiffs from making motions, arguments or claims of spoliation of computerized evidence, and protects defendants from awards of fees, expenses, sanction or

penalties for alleged spoliation of computerized evidence." (Doc. 24, at 3.) Plaintiffs' opposition asks the court "to deny defendants motions, to issue an Order to Preserve Evidence, and to Order sanctions against defendants for bringing such an unfounded motion." (Doc. 25, at 8.) After hearing arguments of counsel and reviewing the filings and all attachments, the court orally GRANTED Defendants' motion insofar as it permits the City of Wichita to re-enable the expiration process on the TSM system and resume normal operations, and DENIED the remainder of Defendants' motion. As to Plaintiffs' requests, the court declined to enter a preservation order at this time and denied, without prejudice to renewal at a future time, the request for sanctions.
The present motions involve Defendants' obligation to preserve material in electronic format, particularly materials located on back-up tapes used by the City of Wichita for disaster protection purposes. [*3] This action was filed on July 28, 2004. (Doc. 1.) On July 26, 2004, counsel for Plaintiffs wrote to the City advising them of their obligation to preserve evidence that is relevant to the lawsuit. (Doc. 24, Rundell Aff., Attach. A.) Counsel advised that the scope of this duty encompassed e-mails, databases, activity logs, and all electronic data files, and included both on-line data storage on computers and mainframes as well as off-line data storage, such as backups and archives. The letter specifically referred to all information sent or received by all members of the Wichita Police Department, all current and past managers of the City, including any interim managers, all City Council members, both past and present, the current Mayor (sic) of the Wichita Police Department, and members of the EEO office of the City of Wichita. Id. at 3-4. Finally, the letter referenced all information regarding discipline of Wichita Police Department Personnel, all information regarding female officers, all information regarding promotions and awards of officers, and all information regarding the unequal treatment of female officers in the Wichita Police Department. Id.
On August 11, 2004, counsel [*4] for the City responded to this letter raising several issues about the City's computer and e-mail systems and suggested that a meeting be held with computer experts from both sides to better define the issues. (Doc. 24, Rundell Aff., Attach. B.) Plaintiffs' counsel responded by letter of August 26, 2004, (a copy of which was provided at the hearing) and the

2004 U.S. Dist. LEXIS 30726, *4

Page 2 of 3

City's counsel replied by letter of September 3, 2004. (Doc. that case, the court discussed the scope of the duty to

24, Rundell Aff., Attach. C.) Subsequently, the parties preserve:

exchanged e-mails on September 30, 2004 and October 5,

2004. No meeting was held between counsel and their

Must a corporation, upon recognizing the threat of

computer experts prior to the filing of the motion and the

litigation, [*7] preserve every shred of paper, every

hearing. Likewise, the City took no affirmative action to

e-mail or electronic document, and every backup

alleviate the problem which they clearly knew would result

tape? The answer is clearly, "no". Such a rule would

from disabling the expiration process on the TSM system.

cripple large corporations, like UBS, that are almost

The City submitted the affidavit of Kevin Norman who is the Senior System Analyst in the IT/IS Department of the City (Doc. 24, Norman Aff., at 2), and Mr. Norman attended the October 12, 2004 hearing. His affidavit explains the back-up system used for disaster data storage by the City -- the Tivoli Storage Manager (TSM). TSM backs up the City's computer network system, but does not [*5] back-up data stored on the

always involved in litigation. As a general rule, then, a party need not preserve all backup tapes even when it reasonably anticipates litigation.
At the same time, anyone who anticipates being a party or is a party to a lawsuit must not destroy unique, relevant evidence that might be useful to an adversary.220 F.R.D. at 217 (footnotes omitted).

hard drives of the City's 1361 computer terminals that are connected to the network. TSM does not, however, provide The court then summarized the scope of a party's preservation the back-up for the City's e-mail system, which has its own obligation:

separate back-up system. 1 TSM uses a progressive backup methodology, which means that TSM performs a full back-up only one time, and from that point on only backs up changed data. That data is spread across numerous tapes, and data related to a specific person could be (and more likely is) spread across a number of back-up tapes within the tape library. Currently there are 122 back-up tapes in use in the TSM system. The recovery log on the server has a maximum allowed storage capacity of 13 gigabytes and if the recovery log reaches that amount, the TSM server will crash. At the hearing, Norman advised that the server capacity had been reached that day and, as a result, the back-up server was disabled. As a result, no additional back-up can be accomplished and, in the event of a disaster, the City would

Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a "litigation hold" to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company's policy. On the other hand, if backup tapes are accessible (i.e., actively used for information retrieval), then such tapes would likely be subject [*8] to the litigation hold.220 F.R.D. at 218.

be unable to recover any data entered after October 12, 2004. Therefore, the City has requested permission of the court to re-enable its expiration process 2 so that it can restart the [*6] TSM back-up system.

Norman's affidavit states that the TSM tapes are not searchable by content and thus cannot be searched using a word search format. The only method of ascertaining what is on the tapes is by guessing based on the names of the files and

Both parties refer the court to Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (Zubulake IV), concerning a party's obligation to preserve electronic data. In

then restoring the tapes onto disks before they can be searched. (Doc. 24, Norman Aff., at 6). It thus appears to the court that in computer parlance, the TSM back-up tapes are inaccessible. See Zubulake v. UBS

Warburg LLC, 217 F.R.D. 309, 318-20 (S.D.N.Y. 2003)

1 Norman stated at the hearing that the City had created a duplicate of the back-up tapes for the City's e-mail system shortly after receiving the letter of July 26, 2004. Thus, the problems discussed concerning the TSM system are not applicable to e-mail back-ups. Likewise, the City has apparently advised all appropriate employees not to destroy information or data relevant to this lawsuit and has assured that any hard drives from the computers of "key players" identified by Plaintiffs will not be destroyed. Thus the focus of the present opinion is only on the TSM back-up system.
2 The expiration process is the process that cleans up, i.e., deletes, inactive or deleted files that no longer need to be maintained on the backup server or back-up tapes. The expiration process is set for fixed time parameters and allows the TSM system to function automatically within those parameters.

2004 U.S. Dist. LEXIS 30726, *8

Page 3 of 3

(Zubulake I) (describing five categories of data and

classifying back-up tapes--Category 4--as inaccessible 3).

While the court's ruling will allow the City to re-enable their

TSM back-up system, there will obviously be many questions

Here, the City placed a "litigation hold" on the TSM back-up that still need to be answered concerning preservation and

process after receipt of the July 26, 2004 letter, but the production of electronic data in this case. From a review of

continuation of that hold has made the system inoperable due the prior communications between counsel in this case, it

to capacity restraints. Litigation holds, like preservation appears to the court that both sides have been more involved

orders, are subject to modification depending on the with posturing than with the genuine resolution of issues

circumstances. For example, the form initial preservation concerning the management of electronic data. It further

order set out in the Manual for Complex appears that counsel are not [*11] fully and adequately

Litigation, [*9] Fourth, § 40.25, contains a paragraph stating communicating with each other in an attempt to resolve those

that a party may apply to the court for further instructions issues. This failure to communicate led to the last minute

regarding the duty to preserve specific categories of "crisis" motion concerning the TSM system which could have

documents, and

been avoided had this issue been fully discussed and

addressed by counsel earlier. Both sides bear some

A party may seek permission to resume routine responsibility for this delay and confusion.

business processes relating to the storage or destruction of specific categories of documents, data, or tangible things, upon a showing of undue cost, burden or overbreadth.That is precisely what the City has done in this case. Under the circumstances presented, the court finds that the City should be allowed to immediately re-enable the expiration process on the TSM system and resume normal back-up operations. While this will result in deletion of data from the back-up TSM system, no party has been able to identify specifically what data will be erased or whether any such data even relates to the Wichita Police Department as opposed to the various other city agencies who maintain files and data on the City's system.

A scheduling conference has been set previously in this case for October 19, 2004 at 9:00 a.m. Under paragraph 4 of the court's Electronic Discovery Guidelines, the parties have the obligation to meet and confer in good faith concerning procedures for handling electronic information prior to the scheduling conference. Because of the lack of meaningful communication to date, the court hereby directs the parties to meet and confer in person, accompanied by their respective in-house or retained computer expert, prior to the scheduling conference to specifically address the items set out in the court's Electronic Discovery Guidelines. In order to allow counsel time to meet and confer, the court hereby continues the scheduling conference for one week to October 26, 2004 at 9:30 a.m. If the parties are unable to reach agreement on the issues concerning [*12] electronic discovery set out in

By allowing the City to re-enable the expiration process on paragraph 4 of the court's Electronic Discovery Guidelines,

the TSM system, however, the court is in no way relieving the they should bring their respective in-house or retained

City from its obligation to preserve evidence which is unique computer experts to the scheduling conference so those issues

to this case and which it knows is relevant to the subject can be taken up with the court.

matter of [*10] the present action. Likewise, the court is not granting the City's request to protect it from any future motions or requests for sanctions should it be determined that the City destroyed relevant documents.

IT IS THEREFORE ORDERED that Defendants' Motion for a Protective Order and Order in Limine (Doc. 24) is GRANTED IN PART AND DENIED IN PART as set forth above. Plaintiffs' requests for a preservation order and for

As to Plaintiffs' request for a preservation order, the court will sanctions are DENIED as set forth above.

not enter a preservation order at this time. Defendants have advised their employees of the obligation to preserve relevant Dated in Wichita, Kansas, on this 14th day of October, 2004.

documents and there is no evidence that the City has lost or destroyed evidence that is relevant to the present case. Under s/ Donald W. Bostwick

those circumstances, the court will not grant a blanket preservation order. See, e.g., Madden v. U.S. MAGISTRATE JUDGE

Wyeth, No. 3-03-CV-0167-R, 2003 U.S. Dist. LEXIS 6427,

2003 WL 21443404, at *1 (N.D.Tex. Apr. 16, 2003).

3 Inaccessible data is not readily usable. Backup tapes must be restored before the data is usable. That makes such data inaccessible. 217 F.R.D. at 320.

 
 APPEAL, MEDIATION, PROTO
U.S. District Court District of Kansas (Wichita) CIVIL DOCKET FOR CASE #: 6:04−cv−01245−MLB

Semsroth et al v. Wichita City of et al Assigned to: District Judge Monti L Belot

Case in other court:

10CCA, 07−03155

Cause: 42:1983 Civil Rights (Employment Discrimination)

Plaintiff

Date Filed: 07/28/2004 Date Terminated: 04/27/2007 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Greta Semsroth On behalf of herself and all others similarly situated

represented by Lawrence W. Williamson, Jr. Williamson Law Firm, LLC 816 Ann Avenue Kansas City, KS 66101 913.871.7060 Fax: 913−535−0736 Email: l.williamson@williamsonfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Kim Warehime On behalf of herself and all others similarly situated

represented by Lawrence W. Williamson, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Sara Voyles On behalf of herself and all others similarly situated

represented by Lawrence W. Williamson, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Heather Plush On behalf of herself and all others similarly situated

represented by Lawrence W. Williamson, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Wichita City of
Defendant Wichita Police Department TERMINATED: 10/25/2004

represented by Kelly J. Rundell City of Wichita, Kansas − Law Department Law Department−13th Floor 455 North Main Street Wichita, KS 67202−1635 316−268−4681 Fax: 316−268−4335 Email: KRundell@wichita.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kelly J. Rundell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Chief Norman Williams Individually and in his official capacity

represented by Kelly J. Rundell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/28/2004 07/29/2004 08/03/2004 08/03/2004 08/03/2004 08/03/2004 08/03/2004 08/20/2004 08/23/2004 08/23/2004 08/25/2004 08/25/2004 08/27/2004 08/27/2004 08/30/2004
08/30/2004 08/30/2004

# Docket Text
1 COMPLAINT (no summons issued) with trial location of Wichita, KS, filed by Heather Plush, Greta Semsroth, Voyles, Kim Warehime.(jb) (Entered: 07/29/2004)
FILING FEE PAID: in the amount of $ 150.00, receipt number 0266703 (jb) (Entered: 07/29/2004)
Summons Issued as to Chief Norman Williams, Wichita City of, Wichita Police Department. (cs) (Entered: 08/03/2004)
2 Summons Returned Executed −− personal service by Heather Plush, Greta Semsroth, Sara Voyles, Kim Warehime upon Chief Norman Williams served on 8/3/2004, answer due 8/23/2004 (Williamson, Lawrence) (Entered: 08/03/2004)
3 Summons Returned Executed −− personal service by Heather Plush, Greta Semsroth, Sara Voyles, Kim Warehime upon Wichita Police Department served on 8/3/2004, answer due 8/23/2004 (Williamson, Lawrence) (Entered: 08/03/2004)
4 Summons Returned Executed −− personal service by Heather Plush, Greta Semsroth, Sara Voyles, Kim Warehime upon (Williamson, Lawrence) (Entered: 08/03/2004)
5 Summons Returned Executed −− personal service by Heather Plush, Greta Semsroth, Sara Voyles, Kim Warehime upon Wichita City of served on 8/3/2004, answer due 8/23/2004 (Williamson, Lawrence) (Entered: 08/03/2004)
6 CLERK'S ORDER extending time until 9/2/04 for Defendants Chief Norman Williams, Wichita City of, Wichita Police Department to answer or otherwise plead. Signed by deputy clerk on 8/20/04. (cs) (Entered: 08/20/2004)
7 MOTION to Dismiss Party City of Wichita Police Department by Defendant Wichita Police Department (Rundell, Kelly) (Entered: 08/23/2004)
8 MEMORANDUM IN SUPPORT of 7 MOTION to Dismiss Party City of Wichita Police Department by Defendant Wichita Police Department (Rundell, Kelly) (Entered: 08/23/2004)
9 MOTION to Dismiss Official Capacity Claims and First Cause of Action by Defendant Chief Norman Williams (Rundell, Kelly) (Entered: 08/25/2004)
10 MEMORANDUM IN SUPPORT of 9 MOTION to Dismiss Official Capacity Claims and First Cause of Action by Defendant Chief Norman Williams (Rundell, Kelly) (Entered: 08/25/2004)
11 MOTION for Temporary Restraining Order and an Order to Limit Defendants' Communication with Class Members by Plaintiffs Heather Plush, Greta Semsroth, Sara Voyles, Kim Warehime (Williamson, Lawrence) (Entered: 08/27/2004)
12 NOTICE of Hearing: TRO Hearing set for 8/30/2004 at 03:00 PM before District Judge Monti L Belot. (cl) (Entered: 08/27/2004)
13 RESPONSE by Defendants Chief Norman Williams, Wichita City of, Wichita Police Department re 11 MOTION for Temporary Restraining Order and an Order to Limit Defendants' Communication with Class Members (Rundell, Kelly) (Entered: 08/30/2004)
14 MOTION to Dismiss State Law Claims by Defendants Chief Norman Williams, Wichita City of, Wichita Police Department (Rundell, Kelly) (Entered: 08/30/2004)
15 MEMORANDUM IN SUPPORT of 14 MOTION to Dismiss State Law Claims by Defendants Chief Norman Williams, Wichita City of, Wichita Police Department

08/30/2004
09/02/2004 09/02/2004 09/02/2004 09/02/2004 09/13/2004 09/13/2004
09/13/2004
09/23/2004 10/08/2004 10/11/2004 10/12/2004 10/13/2004
10/14/2004
10/18/2004

(Rundell, Kelly) (Entered: 08/30/2004)
Minute Entry for proceedings held before Judge Monti L Belot : Motion for Temporary Restraining Order Hearing held on 8/30/2004. Defendant's witness (1) Deputy Chief Stolz. Defendant Exhibit 1. Newspaper Article. Plaintiff Exhibits 1. Letter dated 2/20/04 2. Survey Form. Exhibits admitted. The court denies the motion for a temporary restraining order. Defendant counsel will draft the order. (Court Reporter Cindy Schwemmer.) No PDF Attached.(cl) (Entered: 08/30/2004)
16 MOTION to Dismiss Fourth Cause of Action by Defendants Chief Norman Williams, Wichita City of, Wichita Police Department (Rundell, Kelly) (Entered: 09/02/2004)
17 MEMORANDUM IN SUPPORT of 16 MOTION to Dismiss Fourth Cause of Action by Defendants Chief Norman Williams, Wichita City of, Wichita Police Department (Rundell, Kelly) (Entered: 09/02/2004)
18 ANSWER to Complaint by Wichita City of.(Rundell, Kelly) (Entered: 09/02/2004)
19 ANSWER to Complaint by Chief Norman Williams.(Rundell, Kelly) (Entered: 09/02/2004)
20 ORDER denying 11 Motion for TRO. Signed by Judge Monti L Belot on 9/13/04. (cl) (Entered: 09/13/2004)
21 ORDER SETTING SCHEDULING CONFERENCE: Scheduling Conference set for 10/19/2004 at 09:00 AM before Magistrate Donald W. Bostwick. Counsel shall appear for the conference. Report of Parties Planning Meeting deadline 10/14/2004. See attached Order for details. Signed by Magistrate Judge Donald W. Bostwick on 09/10/04. (aw) (Entered: 09/13/2004)
22 RESPONSE by Plaintiffs Heather Plush, Greta Semsroth, Sara Voyles, Kim Warehime re 7 MOTION to Dismiss Party City of Wichita Police Department, 9 MOTION to Dismiss Official Capacity Claims and First Cause of Action, 14 MOTION to Dismiss State Law Claims, 16 MOTION to Dismiss Fourth Cause of Action (Attachments: # 1 Exhibit February Correspondence)(Williamson, Lawrence) (Entered: 09/13/2004)
23 REPLY to Response to Motion by Defendants Chief Norman Williams, Wichita City of, Wichita Police Department re: 14 MOTION to Dismiss State Law Claims, 16 MOTION to Dismiss Fourth Cause of Action (Rundell, Kelly) (Entered: 09/23/2004)
24 MOTION for Protective Order by Defendants Chief Norman Williams, Wichita City of, Wichita Police Department (Attachments: # 1 Affidavit Kevin Norman# 2 Exhibit Attachment A to Norman# 3 Exhibit Attachment B to Norman# 4 Affidavit Rundell# 5 Exhibit Attachments to Rundell)(Rundell, Kelly) (Entered: 10/08/2004)
25 MEMORANDUM in Opposition by Plaintiffs Heather Plush, Greta Semsroth, Sara Voyles, Kim Warehime re 24 MOTION for Protective Order Motion for Preservation Order and Motion for Sanctions (Attachments: # 1 Exhibit 1# 2 Affidavit of Lawrence Williamson)(Williamson, Lawrence) (Entered: 10/11/2004)
26 STATEMENT of Case Law Supplement by Plaintiffs Heather Plush, Greta Semsroth, Sara Voyles, Kim Warehime. (Williamson, Lawrence) (Entered: 10/12/2004)
Minute Entry for proceedings held before Magistrate Judge Donald W. Bostwick : Motion Hearing held on 10/12/2004 re 24 MOTION for Protective Order filed by Wichita City of, Wichita Police Department, Chief Norman Williams (Tape #DWB 04−40 @ 3:05:40 − 4:29:30.)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (aw) (Entered: 10/13/2004)
27 ORDER granting in part and denying in part 24 Defendants' Motion for Protective Order. See Order for details. Scheduling Conference re−set for 10/26/2004 at 9:30 a.m. See Order for requirements to meet and confer prior to the scheduling conference. Signed by Magistrate Judge Donald W. Bostwick on 10/14/2004. (Bostwick) (Entered: 10/14/2004)
28 Letter from Judge Belot. (sbw) (Entered: 10/18/2004)

10/18/2004 10/25/2004 10/25/2004 10/26/2004
10/26/2004
10/27/2004 11/09/2004 11/09/2004 11/24/2004 11/30/2004
12/01/2004 12/06/2004
12/15/2004 12/15/2004 12/15/2004 12/15/2004 12/20/2004

29 MOTION for extension of time to File Motion for Class Certification by Plaintiffs Heather Plush, Greta Semsroth, Sara Voyles, Kim Warehime (Williamson, Lawrence) (Entered: 10/18/2004)
30 RESPONSE by Defendants Chief Norman Williams, Wichita City of, Wichita Police Department re 29 MOTION for extension of time to File Motion for Class Certification (Rundell, Kelly) (Entered: 10/25/2004)
31 ORDER granting 7 9 14 16 defendants' Motions to Dismiss. The state tort claims are dismissed, with prejudice. Signed by Judge Monti L Belot on 10/25/04. (cl) (Entered: 10/25/2004)
Minute Entry for proceedings held before Magistrate Judge Donald W. Bostwick : Conference held on 10/26/2004 (Tape #DWB #04−40 @ 9:31:40 − 10:24:55.)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (aw) (Entered: 10/26/2004)
32 SCHEDULING ORDER: See Order for details and deadlines. Status Conference set for 12/6/2004 at 01:30 PM before Magistrate Donald W. Bostwick. Counsel to appear. Signed by Magistrate Judge Donald W. Bostwick on 10/26/2004. (Bostwick) (Entered: 10/26/2004)
33 ORDER for Inspection and Reproduction of Equal Employment Opportunity Commission Records. Signed by Magistrate Judge Donald W. Bostwick on 10/27/2004. (Bostwick) (Entered: 10/27/2004)
34 PROTECTIVE ORDER. See Order for details. Signed by Magistrate Judge Donald W. Bostwick on 11/9/2004. (Bostwick) (Entered: 11/09/2004)
35 Unopposed MOTION for extension of time to respond to requests for production by Defendants Chief Norman Williams, Wichita City of, Wichita Police Department (Rundell, Kelly) (Entered: 11/09/2004)
36 NOTICE OF SERVICE by Greta Semsroth of Discovery (Williamson, Lawrence) (Entered: 11/24/2004)
37 ORDER granting 35 Motion for Extension of Time to serve responses to Plaintiff's First Requests for Production. Response deadline 12/1/2004. Signed by Magistrate Judge Donald W. Bostwick on 11/30/2004.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (Bostwick) (Entered: 11/30/2004)
38 NOTICE OF SERVICE by Wichita City of of Response to the First Request for Production of Documents and Things (Rundell, Kelly) (Entered: 12/01/2004)
39 ORDER and Minute Entry for proceedings held before Magistrate Judge Donald W. Bostwick : Status Conference held on 12/6/2004. Set/Reset Hearings: Status Conference set for 1/18/2005 at 10:00 AM before Magistrate Donald W. Bostwick. Counsel to appear for status conference. See Order for details concerning discovery matters prior to next status conference. (Bostwick) Modified on 12/7/2004 to show this was an Order vlw). (Entered: 12/06/2004)
40 NOTICE by Defendants Wichita City of, Wichita Police Department, Chief Norman Williams of taking deposition of Greta Semsroth on December 30, 2004 (Rundell, Kelly) (Entered: 12/15/2004)
41 NOTICE by Defendants Wichita City of, Wichita Police Department, Chief Norman Williams of taking deposition of Kim Warehime on December 30, 2004 (Rundell, Kelly) (Entered: 12/15/2004)
42 NOTICE by Defendants Wichita City of, Wichita Police Department, Chief Norman Williams of taking deposition of Sara Voyles on December 30, 2004 (Rundell, Kelly) (Entered: 12/15/2004)
43 NOTICE by Defendants Wichita City of, Wichita Police Department, Chief Norman Williams of taking deposition of Heather Plush on December 30, 2004 (Rundell, Kelly) (Entered: 12/15/2004)
44 NOTICE OF SERVICE by Wichita City of of Responses to Second Request for Production (Rundell, Kelly) (Entered: 12/20/2004)

01/18/2005
01/18/2005 01/19/2005
01/31/2005 02/08/2005 02/15/2005
02/22/2005 03/22/2005
03/23/2005
03/23/2005
03/31/2005 04/05/2005 04/11/2005 04/11/2005 04/21/2005 05/02/2005 05/02/2005

Minute Entry for proceedings held before Magistrate Judge Donald W. Bostwick : Status Conference held on 1/18/2005 (Tape #DWB 04−42@ 9:57:52 − 10:42:56.)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (aw ) (Entered: 01/18/2005)
45 PROTECTIVE ORDER. Signed by Magistrate Judge Donald W. Bostwick on 1/18/05. (cs) (Entered: 01/19/2005)
46 ORDER Joint report regarding discovery disputes to be submitted by 2/10/2005. See attached Order for details. Status Conference set for 2/15/2005 at 10:00 AM before Magistrate Donald W. Bostwick. Counsel to appear. Signed by Magistrate Judge Donald W. Bostwick on 1/19/05. (aw ) (Entered: 01/19/2005)
47 MOTION to Amend Complaint re 1 Complaint by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush (Attachments: # 1 Proposed Amended Complaint)(Williamson, Lawrence) (Entered: 01/31/2005)
48 RESPONSE by Defendants Wichita City of, Wichita Police Department, Chief Norman Williams re 47 MOTION to Amend Complaint re 1 Complaint (Rundell, Kelly) (Entered: 02/08/2005)
49 Minute Entry for proceedings held before Magistrate Judge Donald W. Bostwick : Status Conference held on 2/15/2005. Another Status Conference is set for 3/23/2005 at 10:00 AM before Magistrate Donald W. Bostwick. Counsel shall appear in person. (Tape #DWB 05−01 @ 10:03:55 − 11:12:41.)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (aw ) (Entered: 02/15/2005)
50 REPLY to Response to Motion by Plaintiff Greta Semsroth re: 47 MOTION to Amend Complaint re 1 Complaint (Williamson, Lawrence) (Entered: 02/22/2005)
51 ORDER granting in part and denying in part 47 Plaintiffs' Motion to Amend Complaint. See Order for details of holding. Counsel directed to file amended complaint that complies with the court's order within 10 days. Signed by Magistrate Judge Donald W. Bostwick on 3/22/2005. (Bostwick, Donald) (Entered: 03/22/2005)
Minute Entry for proceedings held before Magistrate Judge Donald W. Bostwick : Status Conference held on 3/23/2005 (Tape #DWB 05−01 @ 10:01:52 to 10:44:33.) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (aw ) (Entered: 03/23/2005)
52 ORDER granting in part and denying in part 29 Motion for Extension of Time to File Motion for Class Certification. Class Certification Motion to be filed by 6/3/2005. See Order for other discovery rulings. Signed by Magistrate Judge Donald W. Bostwick on 3/23/2005. (Bostwick, Donald) (Entered: 03/23/2005)
53 AMENDED COMPLAINT against Wichita City of, Chief Norman Williams, filed by Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush.(Williamson, Lawrence) (Entered: 03/31/2005)
54 NOTICE by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush of taking deposition of Terri Moses and Bobby Wiley on April 12, 2005 (Williamson, Lawrence) (Entered: 04/05/2005)
55 ANSWER to Complaint by Wichita City of.(Rundell, Kelly) (Entered: 04/11/2005)
56 ANSWER to Amended Complaint by Chief Norman Williams.(Rundell, Kelly) (Entered: 04/11/2005)
57 NOTICE by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush of taking deposition of Norman Williams on 04/28/05 (Williamson, Lawrence) (Entered: 04/21/2005)
58 STATEMENT of Brief Addressing Costs for Electronic Discovery by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush. (Williamson, Lawrence) (Entered: 05/02/2005)
59 MOTION for Leave to File Excess Pages by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush(Williamson, Lawrence) (Entered: 05/02/2005)

05/04/2005 05/16/2005 05/17/2005
05/17/2005
05/31/2005
05/31/2005 05/31/2005
06/03/2005
07/05/2005 07/07/2005 07/07/2005 07/07/2005 07/07/2005 07/07/2005 07/08/2005 07/21/2005 07/25/2005

60 MINUTE ORDER granting 59 Motion for Leave to File Excess Pages. Signed by deputy clerk on May 4, 2005. (jh) (Entered: 05/04/2005)
61 MOTION for Extension of Time to File Response as to 58 Statement by Defendants Wichita City of, Chief Norman Williams(Rundell, Kelly) (Entered: 05/16/2005)
62 ORDER granting 61 Motion for Extension of Time to File Response/Reply re 58 Statement. Response deadline 5/17/2005. Signed by Magistrate Judge Donald W. Bostwick on 5/17/2005.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (Bostwick, Donald) (Entered: 05/17/2005)
63 RESPONSE to 58 Statement Addressing Cost−Shifting by Defendants Wichita City of, Chief Norman Williams. (Attachments: # 1 Affidavit Norman# 2 Affidavit Rundell# 3 Exhibit Semsroth depo# 4 Exhibit Plush Depo# 5 Exhibit Voyles depo# 6 Exhibit Warehime depo)(Rundell, Kelly) (Entered: 05/17/2005)
64 DOCUMENT STRICKEN PER CHAMBERS; CORRECT DOCUMENT FILED AS DE 65 −− Unopposed MOTION for extension of time to file motion for class certification by Plaintiff Greta Semsroth(Williamson, Lawrence) Modified on 5/31/2005 (cs, ). (Entered: 05/31/2005)
65 Unopposed MOTION for extension of time to file motion for class certification by Plaintiff Greta Semsroth(Williamson, Lawrence) (Entered: 05/31/2005)
66 STATEMENT re 58 Statement Reply to Defendants' Response re Doc 58 by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush. (Attachments: # 1 Exhibit # 2 Exhibit 2)(Williamson, Lawrence) (Entered: 05/31/2005)
67 ORDER granting 65 Motion for Extension of Time to File Motion for Class Certification. Motion for Class Certification to be filed not later than 7/8/2005. THIS IS A FINAL EXTENSION AND NO FURTHER EXTENSIONS WILL BE GRANTED. Signed by Magistrate Judge Donald W. Bostwick on 6/3/2005. (Bostwick, Donald) (Entered: 06/03/2005)
68 MOTION for Leave to file Memorandum in Support of Plaintiffs' Certification Motion Under Seal by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush(Williamson, Lawrence) (Entered: 07/05/2005)
69 ORDER granting 68 plaintiffs' Motion to File Memorandum in Support of Plaintiffs' Certification Motion Under Seal. Signed by Judge Monti L Belot on 7/7/05. (jh) (Entered: 07/07/2005)
70 MOTION to Certify Class by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush (Attachments: # 1 Declaration of Lawrence W. Williamson, Jr.)(Williamson, Lawrence) (Entered: 07/07/2005)
71 MEMORANDUM IN SUPPORT of 70 MOTION to Certify Class (Redacted, Without Exhibits) by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush(Williamson, Lawrence) (Entered: 07/07/2005)
72 NOTICE OF SERVICE by Wichita City of, Chief Norman Williams of Request for Admissions to Semsroth (Rundell, Kelly) (Entered: 07/07/2005)
73 Amended MOTION to Certify Class by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush (Attachments: # 1 Declaration of Lawrence W. Williamson, Jr.)(Williamson, Lawrence) (Entered: 07/07/2005)
74 DECLARATION of Lawrence Williamson, Jr re 70 MOTION to Certify Class by Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush (FILED UNDER SEAL; NO.PDF ATTACHED). (cs, ) (Entered: 07/08/2005)
75 MOTION for Extension of Time to File Response as to 70 MOTION to Certify Class, 71 Memorandum in Support of Motion to Certify Class by Defendants Wichita City of, Chief Norman Williams(Rundell, Kelly) (Entered: 07/21/2005)
76 ORDER granting 75 defendant's Motion for Extension of Time to respond to plaintiffs' motion to certify a class action. Defendants are granted a 30 day extension, or until 8/20/05. No further extensions will be granted. . Signed by Judge Monti L

07/27/2005 08/08/2005 08/12/2005 08/16/2005 08/16/2005
08/17/2005 08/19/2005 08/25/2005 08/30/2005
09/29/2005 09/30/2005 09/30/2005 10/07/2005 10/17/2005
10/18/2005

Belot on 7/25/05.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (cl, ) (Entered: 07/25/2005)
77 MOTION to Strike 74 Affidavit Exhibits 8−22 of Motion for Class Certification by Defendants Wichita City of, Chief Norman Williams (Attachments: # 1)(Rundell, Kelly) (Entered: 07/27/2005)
78 RESPONSE by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush re 77 MOTION to Strike 74 Affidavit Exhibits 8−22 of Motion for Class Certification (Williamson, Lawrence) (Entered: 08/08/2005)
79 MOTION for Leave to File Excess Pages by Defendants Wichita City of, Chief Norman Williams(Rundell, Kelly) (Entered: 08/12/2005)
80 RESPONSE by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush re 79 MOTION for Leave to File Excess Pages (Williamson, Lawrence) (Entered: 08/16/2005)
81 ORDER granting 79 defendants' Motion for Leave to File Excess Pages. Defendants' are permitted to file a memorandum no longer than 45 pages. Plaintiff's reply is limited to 10 pages. Signed by Judge Monti L Belot on 8/16/05.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (cl ) (Entered: 08/16/2005)
82 RESPONSE by Defendants Wichita City of, Chief Norman Williams re 70 MOTION to Certify Class (Attachments: # 1 # 2 Affidavit Tanner# 3 Affidavit Coley# 4 Affidavit Fickle# 5 Affidavit Relph# 6 Affidavit Moses# 7 Affidavit white# 8 # 9 # 10 # 11 # 12 # 13)(Rundell, Kelly) (Entered: 08/17/2005)
83 MOTION for Leave to File Excess Pages by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush(Williamson, Lawrence) (Entered: 08/19/2005)
84 ORDER granting 83 plaintiffs' Motion for Leave to File Excess Pages . Signed by Judge Monti L Belot on 8/25/05. (cl ) Modified on 8/26/2005 to correct typo (cs, ). (Entered: 08/25/2005)
85 REPLY to Response to Motion by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush re: 70 MOTION to Certify Class, 73 Amended MOTION to Certify Class (Attachments: # 1 Exhibit (1) EEOC Notice and Charge for Semsroth# 2 Exhibit (2) KHRC Charge for Semsroth# 3 Exhibit (3) EEOC Notice and Charge for Voyles)(Williamson, Lawrence) (Entered: 08/30/2005)
86 MEMORANDUM AND ORDER denying 70 73 Motion to Certify Class. 77 Motion to Strike is denied as moot. Signed by Judge Monti L Belot on 9/29/05. (jh) (Entered: 09/29/2005)
87 MOTION for Reconsideration re 86 Order on Motion to Certify Class,, Order on Motion to Strike by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush(Williamson, Lawrence) (Entered: 09/30/2005)
88 MOTION to Certify Class (Renewed) by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush(Williamson, Lawrence) (Entered: 09/30/2005)
89 RESPONSE by Defendants Wichita City of, Chief Norman Williams re 87 MOTION for Reconsideration re 86 Order on Motion to Certify Class,, Order on Motion to Strike (Rundell, Kelly) (Entered: 10/07/2005)
90 MINUTE ORDER−On or before 5:00 p.m., 10/18/05, plaintiffs shall respond to the orders to show cause set forth on p.16 of its 9/29/05 Memorandum and Order (Doc.86). If no timely response is filed, plaintiff Plush's Title VII claims will be dismissed, with prejudice, and all plaintiffs' 42 U.S.C. Sec 1981 claims will be dismissed, with prejudice. (cl ) (Entered: 10/17/2005)
91 RESPONSE by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush re 86 Order on Motion to Certify Class,, Order on Motion to Strike, 90 Order, to Show Cause (Williamson, Lawrence) (Entered: 10/18/2005)

10/21/2005 03/14/2006
03/28/2006
04/04/2006 04/12/2006 04/12/2006 04/12/2006 04/12/2006 05/04/2006 05/12/2006 05/23/2006 06/02/2006 06/15/2006 06/15/2006 06/19/2006 06/23/2006
06/28/2006 07/11/2006

92 ORDER denying 87 Motion for Reconsideration of court's order denying plaintiffs' motion to certify a class action. Signed by Judge Monti L Belot on 10/21/05. (jh) (Entered: 10/21/2005)
Minute Entry : Telephone Status Conference set for 3/28/2006 at 02:00 PM before Magistrate Donald W. Bostwick. The Court will initiate the call. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (aw) (Entered: 03/14/2006)
93 Minute Entry for proceedings held before Magistrate Judge Donald W. Bostwick : Telephone Status Conference held on 3/28/2006. Set/Reset Hearings: Status Conference set for 7/20/2006 at 10:00 AM before Magistrate Donald W. Bostwick. See Order for details of discovery to be completed. (Bostwick, Donald) (Entered: 03/28/2006)
94 NOTICE OF SERVICE by Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush of Interrogatories (Williamson, Lawrence) (Entered: 04/04/2006)
95 NOTICE by Defendants Wichita City of, Wichita Police Department, Chief Norman Williams of taking deposition of Heather Plush on April 27, 2006 (Rundell, Kelly) (Entered: 04/12/2006)
96 NOTICE by Defendants Wichita City of, Wichita Police Department, Chief Norman Williams of taking deposition of Greta Semsroth on April 19, 2006 (Rundell, Kelly) (Entered: 04/12/2006)
97 NOTICE by Defendants Wichita City of, Wichita Police Department, Chief Norman Williams of taking deposition of Kim Warehime on April 21, 2006 (Rundell, Kelly) (Entered: 04/12/2006)
98 NOTICE by Defendants Wichita City of, Wichita Police Department, Chief Norman Williams of taking deposition of Sara Voyles on April 24, 2006 (Rundell, Kelly) (Entered: 04/12/2006)
99 NOTICE OF SERVICE by Wichita City of of Responses to Interrogatories (Rundell, Kelly) (Entered: 05/04/2006)
100 NOTICE OF SERVICE by Wichita City of, Chief Norman Williams of Requests for Production to Plaintiffs Semsroth and Warehime (Rundell, Kelly) (Entered: 05/12/2006)
101 NOTICE OF SERVICE by Wichita City of, Chief Norman Williams of Request for Admissions to Plaintiffs Plush and Voyles (Rundell, Kelly) (Entered: 05/23/2006)
102 NOTICE of Withdrawal of Discovery by Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush (Williamson, Lawrence) (Entered: 06/02/2006)
103 NOTICE OF SERVICE by Wichita City of, Chief Norman Williams of Interrogatories to Plaintiff Semsroth (Rundell, Kelly) (Entered: 06/15/2006)
104 NOTICE OF SERVICE by Wichita City of, Chief Norman Williams of Interrogatories to Plaintiff Warehime (Rundell, Kelly) (Entered: 06/15/2006)
105 NOTICE OF SERVICE by Wichita City of, Chief Norman Williams of Interrogatories to Plaintiff Voyles (Rundell, Kelly) (Entered: 06/19/2006)
106 Second MOTION to Amend Complaint re 53 Amended Complaint by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush (Attachments: # 1 Exhibit Copy of Voyles EEOC charge# 2 Exhibit Copy of Warehime EEOC charge# 3 Exhibit Copy of Plush EEOC charge# 4 Exhibit Copy of Semsroth EEOC charge# 5 Exhibit Right to Sue for All Plaintiffs# 6 Exhibit Second Amended Complaint) (Williamson, Lawrence) (Entered: 06/23/2006)
107 RESPONSE by Defendants Wichita City of, Chief Norman Williams re 106 Second MOTION to Amend Complaint re 53 Amended Complaint (Rundell, Kelly) (Entered: 06/28/2006)
108 REPLY to Response to Motion by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush re: 106 Second MOTION to Amend Complaint re 53 Amended Complaint (Williamson, Lawrence) (Entered: 07/11/2006)

07/20/2006
07/20/2006 07/21/2006
07/21/2006 07/24/2006 08/04/2006
08/14/2006 08/21/2006 08/22/2006
08/23/2006 09/05/2006 09/05/2006 09/05/2006 09/07/2006 09/11/2006 09/15/2006 09/18/2006

Minute Entry for proceedings held before Magistrate Judge Donald W. Bostwick : Status Conference held on 7/20/2006 (Tape #10:14:14−11:22:23.) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (aw ) (Entered: 07/20/2006)
109 NOTICE OF SERVICE by Wichita City of, Chief Norman Williams of Interrogatories on Plaintiff Plush (Rundell, Kelly) (Entered: 07/20/2006)
110 FINAL SCHEDULING ORDER: Discovery deadline 10/31/2006. Dispositive motion deadline set for 1/12/2007. Mediation deadline 1/31/2007. Proposed Pretrial Order due by 11/20/2006. Final Pretrial Conference set for 12/4/2006 at 01:30 PM before District Judge Monti L Belot. See attached Order for additional details. Signed by Magistrate Judge Donald W. Bostwick on 7/21/06.(aw ) (Entered: 07/21/2006)
111 NOTICE OF SERVICE by Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush of First Set of Interrogatories to Defendant City of Wichita (Williamson, Lawrence) (Entered: 07/21/2006)
112 EXHIBIT(S) IN SUPPORT of 106 Second MOTION to Amend Complaint re 53 Amended Complaint (Supplemental−Received After Date of Motion). (Williamson, Lawrence) (Entered: 07/24/2006)
113 NOTICE OF SERVICE by Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush of Second Set of Interrogatories and First Set of Merits Requests for Prodcution to Defendant City of Wichita (Williamson, Lawrence) (Entered: 08/04/2006)
114 Expert Witness Designation Pursuant to Fed. Rule 26(a)(2) by Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush. (Williamson, Lawrence) (Entered: 08/14/2006)
115 MOTION for extension of time to respond to the First Set of Interrogatories by Defendant Wichita City of (Rundell, Kelly) (Entered: 08/21/2006)
116 ORDER granting 115 Defendants' Motion for Extension of Time to Serve Answers to Interrogatories. Responses to be served on or before 9/11/2006. Signed by Magistrate Judge Donald W. Bostwick on 8/22/2006.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Bostwick, Donald) (Entered: 08/22/2006)
117 SUPPLEMENT to 66 Statement, 58 Statement Regarding Cost Shifting Pursuant to Final Scheduling Order by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush. (Williamson, Lawrence) (Entered: 08/23/2006)
118 ORDER denying 106 Plaintiffs' Second Motion to Amend Complaint. Signed by Magistrate Judge Donald W. Bostwick on 9/5/2006. (Bostwick, Donald) (Entered: 09/05/2006)
119 MOTION for extension of time to Respond to Discovery by Defendant Wichita City of (Rundell, Kelly) (Entered: 09/05/2006)
120 ORDER granting 119 Defendants' Motion for Extension of Time to Respond to Discovery. Discovery responses due on or before 9/18/2006. Signed by Magistrate Judge Donald W. Bostwick on 9/5/2006. (Bostwick, Donald) (Entered: 09/05/2006)
121 SUPPLEMENT Brief on Cost−Shifting of Electronic Discovery by Defendants Wichita City of, Norman Williams. (Attachments: # 1 Affidavit Kevin Norman# 2 Exhibit Deposition excerpts)(Rundell, Kelly) (Entered: 09/07/2006)
122 NOTICE OF SERVICE by Wichita City of of Responses to First Set of Interrogatories (Rundell, Kelly) (Entered: 09/11/2006)
123 NOTICE OF SERVICE by Wichita City of, Norman Williams of Second Request for Production to Plaintiffs (Rundell, Kelly) (Entered: 09/15/2006)
124 NOTICE OF SERVICE by Wichita City of of Responses to Second Set of Interrogatories and Second Requests for Production (First on Merits) (Rundell, Kelly) (Entered: 09/18/2006)

09/18/2006 09/20/2006 09/21/2006 09/28/2006 10/02/2006 10/23/2006 10/31/2006
11/15/2006
11/27/2006 12/01/2006 12/04/2006 12/19/2006 12/28/2006 12/28/2006 12/29/2006 12/29/2006 01/10/2007 01/10/2007 01/11/2007
01/12/2007

125 NOTICE OF SERVICE by Wichita City of, Norman Williams of Supplemental Rule 26 Disclosures (Rundell, Kelly) (Entered: 09/18/2006)
126 NOTICE OF SERVICE by Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush of Plaintiffs' Supplemental Disclosures (Williamson, Lawrence) (Entered: 09/20/2006)
127 NOTICE OF SERVICE by Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush of Plaintiffs' Second Set of Requests for Production and Third Set of Interrogatories (Williamson, Lawrence) (Entered: 09/21/2006)
128 NOTICE OF SERVICE by Wichita City of, Norman Williams of Second Set of Interrogatories to Each Plaintiff (Rundell, Kelly) (Entered: 09/28/2006)
129 NOTICE of Disclosure of Expert Witness by Wichita City of, Norman Williams (Rundell, Kelly) (Entered: 10/02/2006)
130 NOTICE OF SERVICE by Wichita City of of Responses to Third Set of Interrogatories and Second Set of Merit Requests for Production (Rundell, Kelly) (Entered: 10/23/2006)
131 NOTICE OF SERVICE by Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush of Responses to Defendants Second Set Interrogatories and Supplemental Responses to Defendants' First Set of Interrogatories (Williamson, Lawrence) (Entered: 10/31/2006)
132 ORDER re Defendants' Oral Motion for Plaintiffs to pay all or part of the costs relating to discovery of Defendants' electronic mail. See Order for details. Signed by Magistrate Judge Donald W. Bostwick on 11/15/2006.(Bostwick, Donald) (Entered: 11/15/2006)
133 Letter from Judge Monti Belot regarding proposed pretrial order. The final pretrial conference set for 12/4/06 is cancelled. (cl ) (Entered: 11/27/2006)
134 MOTION for extension of time to file corrected pretrial order and to extend dispositive motion deadline by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush (Williamson, Lawrence) (Entered: 12/01/2006)
135 ORDER granting 134 Motion for Extension of Time to submit revised pre−trial order to 12/13/06. Dispositive motion to be filed on or before 1/26/06. Signed by Judge Monti L Belot on 12/4/06. (cl ) (Entered: 12/04/2006)
136 Letter from Judge Belot re pretrial order. (cl ) (Entered: 12/19/2006)
137 MOTION to Strike Expert Bardwell by Defendants Wichita City of, Norman Williams (Rundell, Kelly) (Entered: 12/28/2006)
138 MEMORANDUM IN SUPPORT of 137 MOTION to Strike Expert Bardwell by Defendants Wichita City of, Norman Williams(Rundell, Kelly) (Entered: 12/28/2006)
139 MOTION to Strike Expert Harrington by Defendants Wichita City of, Norman Williams (Rundell, Kelly) (Entered: 12/29/2006)
140 MEMORANDUM IN SUPPORT of 139 MOTION to Strike Expert Harrington by Defendants Wichita City of, Norman Williams(Rundell, Kelly) (Entered: 12/29/2006)
141 Letter from Judge Belot (sbw) (Entered: 01/10/2007)
142 PRETRIAL ORDER ENTERED−trial to jury, estimated trial time 8 days Signed by Judge Monti L Belot on 1/10/07.(cl ) (Entered: 01/10/2007)
143 Unopposed MOTION for Extension of Time to File Response as to 138 Memorandum in Support of Motion, 137 MOTION to Strike Expert Bardwell by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush (Williamson, Lawrence) (Entered: 01/11/2007)
144 RESPONSE by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush re 137 MOTION to Strike Expert Bardwell, 139 MOTION to Strike Expert Harrington (Attachments: # 1 Exhibit A−Bardwell Report# 2 Exhibit C−Abstract)(Williamson, Lawrence) (Entered: 01/13/2007)

01/13/2007
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01/19/2007 01/26/2007 01/26/2007 01/30/2007 02/01/2007 02/02/2007 02/05/2007 02/05/2007
02/13/2007 02/14/2007

145 EXHIBIT(S) IN SUPPORT of 144 Response to Motion, by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush (Attachments: # 1 Exhibit B−Harrington Report Part 1# 2 Exhibit B−Harrington Report Part 2# 3 Exhibit B−Harrington Report Part 3# 4 Exhibit B−Harrington Report Part 4a# 5 Exhibit B−Harrington Report Part 4b# 6 Exhibit B−Harrington Report Part 5)(Williamson, Lawrence) (Entered: 01/13/2007)
146 ORDER granting 143 plaintiffs' Motion for Extension of Time to File Response/Reply. Signed by Judge Monti L Belot on 1/16/07. (cl ) (Entered: 01/16/2007)
147 MOTION for extension of time and motion for leave to file separate motions or for additional pages by Defendants Wichita City of, Norman Williams (Rundell, Kelly) (Entered: 01/17/2007)
148 ORDER granting 147 defendant's Motion for Extension of Time to File dispositive motions until 2/2/07. Defendant may file separate dispositive motions directed toward each plaintiff. Motions shall be 15 pages for each plaintiff or 60 pages total. Signed by Judge Monti L Belot on 1/18/07.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (cl ) (Entered: 01/18/2007)
149 ADR REPORT by Wichita City of, Norman Williams. ADR session held on: January 18, 2007 and conducted by Larry Rute. Results of ADR: Case did not settle. Status of litigation at time of ADR: Discovery Complete(Rundell, Kelly) (Entered: 01/19/2007)
150 REPLY to Response to Motion by Defendants Wichita City of, Norman Williams re: 139 MOTION to Strike Expert Harrington (Rundell, Kelly) (Entered: 01/26/2007)
151 REPLY to Response to Motion by Defendants Wichita City of, Norman Williams re: 137 MOTION to Strike Expert Bardwell (Rundell, Kelly) (Entered: 01/26/2007)
152 MOTION for Sanctions by Defendants Wichita City of, Norman Williams (Attachments: # 1 Motion served on plaintiffs' attorney# 2 Exhibit letter to plaintiffs' attorney) (Rundell, Kelly) (Entered: 01/30/2007)
153 Second MOTION for extension of time to File Dispositive Motion by Defendants Wichita City of, Norman Williams (Rundell, Kelly) (Entered: 02/01/2007)
MINUTE ORDER granting 153 Motion for Extension of Time until 2/5/07 to File Dispositive Motion. Signed by deputy clerk on 2/2/07.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (jh) (Entered: 02/02/2007)
154 MOTION for Summary Judgment by Defendants Wichita City of, Norman Williams (Rundell, Kelly) (Entered: 02/05/2007)
155 MEMORANDUM IN SUPPORT of 154 MOTION for Summary Judgment by Defendants Wichita City of, Norman Williams (Attachments: # 1 List of Attachments# 2 Exhibit Moses Depo# 3 Exhibit Plush depo I# 4 Exhibit Plush depo II# 5 Exhibit Semsroth depo I# 6 Exhibit Semsroth depo II, part 1# 7 Exhibit Semsroth depo II, part 2# 8 Exhibit Voyles depo I# 9 Exhibit Voyles depo II# 10 Exhibit Warehime depo I# 11 Exhibit Warehime depo II, part 1# 12 Exhibit Warehime depo II, part 2# 13 Exhibit Wiley depo# 14 Exhibit Williams depo# 15 Exhibit Depo exhibits, part 1# 16 Exhibit Depo exhbits part 2# 17 Affidavit Allred# 18 Affidavit Chambers# 19 Affidavit Haynes# 20 Affidavit Lee# 21 Affidavit Leiker# 22 Affidavit Moses# 23 Affidavit Relph# 24 Affidavit Stolz# 25 Affidavit Watts# 26 Affidavit Williams)(Rundell, Kelly) (Entered: 02/05/2007)
156 RESPONSE by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush re 152 MOTION for Sanctions (Williamson, Lawrence) (Entered: 02/13/2007)
157 EXHIBIT(S) IN SUPPORT of 156 Response to Motion by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush (Attachments: # 1 Exhibit EEOC and Right to Sue for Semsroth# 2 Exhibit EEOC Charge and Right to Sue Letter of Warehime# 3 Exhibit EEOC Charge and Right to Sue for Voyles# 4 Exhibit EEOC Charge and Right to Sue for Plush)(Williamson, Lawrence) (Entered: 02/14/2007)

02/21/2007 02/23/2007 02/26/2007 02/28/2007
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04/27/2007 04/27/2007

158 MOTION for Order allowing plaintiffs to exceed the page limit established by the Court's Standing Order by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush (Williamson, Lawrence) (Entered: 02/21/2007)
159 ORDER granting in part 158 Motion to Exceed Page Limit. Plaintiffs' Response to Defendants' Motion for Summary Judgment is not to exceed 50 pages in length. Signed by Judge Monti L Belot on 2/23/07. (jh) (Entered: 02/23/2007)
160 REPLY to Response to Motion by Defendants Wichita City of, Norman Williams re: 152 MOTION for Sanctions (Rundell, Kelly) (Entered: 02/26/2007)
161 MOTION for Leave to File Under Seal , Exhibits to Plaintiffs' Response to Defendants' Motion for Summary Judgment by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush (Williamson, Lawrence) (Entered: 02/28/2007)
162 RESPONSE by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush re 154 MOTION for Summary Judgment w/o Exhibits (To Be Filed Under Seal) (Williamson, Lawrence) (Entered: 02/28/2007)
163 ORDER granting 161 Motion to Seal Exhibits in support of Response to Defendants' Motion for Summary Judgment. Signed by Judge Monti L Belot on 3/2/07. (jh) (Entered: 03/02/2007)
164 MOTION for Leave to file Surreply to Defendants' Reply to Plaintiffs' Response to Defendants' Motion for Sanctions by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush (Attachments: # 1 Exhibit A−Surreply to Defendants' Reply to Plaintiffs' Response to Defendants' Motion for Sanctions) (Williamson, Lawrence) (Entered: 03/05/2007)
166 SEALED EXHIBIT(S) IN SUPPORT of 162 Response to Motion by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush(ef, ) (Entered: 03/07/2007)
165 Letter from Judge Belot (sbw ) (Entered: 03/07/2007)
167 MINUTE ORDER striking 152 defendant's motion for sanctions; striking 164 motion for leave to file surreply to motion for sanctions; striking related submissions 156 160 . Signed by Judge Monti L Belot on 3/8/07.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (cl ) (Entered: 03/08/2007)
168 Letter to counsel from Judge Monti L. Belot (jh) (Entered: 03/20/2007)
169 AMENDED DOCUMENT (Corrected Response to Motion for Summary Judgment) by Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush. Amendment to 162 Response to Motion. (Williamson, Lawrence) Modified on 4/2/2007 to show title of document (cs, ). (Entered: 03/30/2007)
170 MOTION for Leave to File Excess Pages by Defendants Wichita City of, Norman Williams (Rundell, Kelly) (Entered: 04/03/2007)
171 ORDER granting 170 defendants' motion for leave to file excess page limits. Signed by Judge Monti L Belot on 4/4/07. (cl ) (Entered: 04/04/2007)
172 REPLY to Response to Motion by Defendants Wichita City of, Norman Williams re: 154 MOTION for Summary Judgment (Attachments: # 1 List of Attachments# 2 Exhibit Moses Deposition excerpts# 3 Exhibit Plush I depo excerpts# 4 Exhibit Plush II Depo excerpts# 5 Exhibit Semsroth I depo excerpts# 6 Exhibit Semsroth II Depo exceprts# 7 Exhibit Voyles I depo excerpts# 8 Exhibit Voyles II depo excerpts# 9 Exhibit Warehime I depo excerpts# 10 Exhibit Warehime II depo excerpts# 11 Exhibit Wiley depo excerpts# 12 Exhibit Williams depo excerpts# 13 Affidavit Dye# 14 Affidavit Stolz second affidavit# 15 Affidavit Williams second affidavit# 16 Exhibit Semsroth interrogatories)(Rundell, Kelly) (Entered: 04/06/2007)
173 MEMORANDUM AND ORDER granting 154 Motion for Summary Judgment and denying 137 139 Motions to Strike as moot. Signed by Judge Monti L Belot on 4/27/07. (jh) (Entered: 04/27/2007)
174 JUDGMENT: Pursuant to the Memorandum and Order (Doc. 173) filed on April 27, 2007, Defendants Motion for Summary Judgment (Doc. 154) is granted. Judgment is

04/30/2007
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07/03/2007

entered in favor of Defendants Greta Semsroth, Kim Warehime, Sara Voyles and Heather Plush, and against Plaintiffs City of Wichita and Chief Norman Williams. Signed by deputy clerk on 4/27/07.(jh) (Entered: 04/27/2007)
175 JUDGMENT NUNC PRO TUNC: Pursuant to the Memorandum and Order (Doc. 173) filed on April 27, 2007, Defendants Motion for Summary Judgment (Doc. 154) is granted. Judgment is entered in favor of Defendants City of Wichita and Chief Norman Williams, and against Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, and Heather Plush. Signed by deputy clerk on 4/30/07.(jh, ) (Entered: 04/30/2007)
176 NOTICE OF APPEAL as to 159 Order on Motion for Order, 174 Judgment, 173 Order on Motion to Strike,, Order on Motion for Summary Judgment, 86 Order on Motion to Certify Class,, Order on Motion to Strike by Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush. (Williamson, Lawrence) (Entered: 05/24/2007)
APPEAL FEE STATUS: filing fee not paid re: Notice of Appeal − Final Judgment, 176 on behalf of Plaintiffs Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush (THIS IS A TEXT ONLY ENTRY−NO DOCUMENT IS ASSOCIATED WITH THIS TRANSACTION) (cs, ) (Entered: 05/25/2007)
177 PRELIMINARY RECORD ON APPEAL transmitted to 10CCA re 176 Notice of Appeal − Final Judgment, (Attachments: # 1 Letter to Counsel# 2 Docket Sheet# 3 Docketing Statement Instructions# 4 Docketing Statement# 5 Letter to Prosecuting Attorney# 6 Transcript Order Form# 7 FAQs)(cs, ) (Entered: 05/25/2007)
178 RECEIPT FROM 10CCA of Preliminary Record on Appeal re 176 Notice of Appeal − Final Judgment, Appeal No. 07−3155 (cs, ) (Entered: 06/05/2007)
179 APPEAL DOCKETED in 10CCA on 5/31/07 and assigned Appeal No. 07−3155 re 176 Notice of Appeal − Final Judgment, filed by Sara Voyles, Greta Semsroth, Kim Warehime, Heather Plush. (cs, ) (Entered: 06/05/2007)
180 TRANSCRIPT ORDER FORM: No Transcript Required filed by Greta Semsroth, Kim Warehime, Sara Voyles, Heather Plush re 176 Notice of Appeal − Final Judgment, (Williamson, Lawrence) (Entered: 06/13/2007)
181 LETTER TO 10CCA stating record is complete re 176 Notice of Appeal − Final Judgment ( Appeal No. 07−3155) (cs, ) (Entered: 06/14/2007)
182 Letter from 10CCA stating fee has not been paid; if the fee is not paid within 10 days, the appeal may be dismissed without further notice an counsel may be subject to discipline re 176 Notice of Appeal − Final Judgment, ( Appeal No. 07−3155) (cs, ) (Entered: 06/25/2007)
APPEAL FEE PAID in the amount of $455; Receipt No. 4631001553 re Notice of Appeal − Final Judgment, 176 filed by Sara Voyles, Greta Semsroth, Kim Warehime, Heather Plush (Appeal No. 07−03155) (THIS IS A TEXT ONLY ENTRY−NO DOCUMENT IS ASSOCIATED WITH THIS TRANSACTION) (cs, ) (Entered: 07/03/2007)
183 Letter to 10CCA: stating appeal fee paid re 176 Notice of Appeal − Final Judgment, ( Appeal No. 07−3155) (cs, ) (Entered: 07/03/2007)