* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 14 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SHAUNA E. SMITH, Plaintiff - Appellant,

v. CITY OF OKLAHOMA CITY, Defendant - Appellee, and L. D. ALLEN; DON BROWNING; PAUL BURLEY; THOMAS HART; MIKE HEATH; DALE MARSHALL; BILLY PRATT; NATHAN PYLE; DARREN RAINES; DAVID SHUPE; MARTY STUPKA; MIKE WILLIAMS, Defendants. No. 01-6307 (Western District of Oklahoma) (D.C. No. 99-CV-1842-R)

ORDER AND JUDGMENT *

Before SEYMOUR , McKAY , and MURPHY , Circuit Judges.-2-

I. INTRODUCTION Shauna E. Smith (“Smith”) filed this suit against h er former employer, the City of Oklahoma City (the “City”), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e – 2000e-17, alleging claim s for sexual harassment hostile work environment, constructive discharge, and retaliation. After a trial on the merits, a jury returned a verdict in favor of t he City. Smith moved for a new trial under Rule 59 of the Fe deral Rules of Civil Procedure, arguing that the district court erred in instructing the jury that Sergeant Don Browning (“Browning”) was not her supe rvisor and in admitting the City’s training videotape into evidence. The distr ict court denied the motion and Smith appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms in part and reverses in part the district court’s denial of Smith’s motion for a new trial.
II. BACKGROUND Smith was employed as a police officer by the City from September 1989 until November 1999. In 1993, Smith was assigned to the IMPACT unit of the police department. At trial, Smith testified that while in IMPACT, she attended an ethics training class during which a training videotape was shown. Smith testified that the videotape included scenes from a surveillance tape depicting an officer and a-3-

confidential informant engaging in sexual acts. Sm ith testified that the videotape produced by the City during discovery was edited an d did not include the sexual acts that were shown during the training class. Jo hnny Loudermilk (“Loudermilk”), a former police officer, testified that he attended the same training class and viewed the same videotape depict ing sexual acts between the officer and the confidential informant. The distri ct court admitted the videotape into evidence. In response to Smith’s and Loudermilk’s testimony, the City called Captain Byron Boshell (“Boshell”) who testified that he edi ted the videotape for the training class. Boshell, however, further testifie d that the original videotape did not include the sexual acts testified to by Smith a nd Loudermilk. The City moved to have the original videotape as edited by Boshell admitted into evidence. Smith objected, arguing that the City failed to produce t he original videotape in discovery and did not list it as an exhibit in the pretrial order. The district court overruled Smith’s objection and admitted the origin al videotape into evidence. In December 1994, Smith was assigned to the positi on of K-9 officer. She began K-9 training in January 1995. From January 1 995 until April 18, 1995, Smith trained with Browning. At trial, Smith prese nted evidence that Browning was responsible for assigning her a dog, provided h er with daily one-on-one training on dog handling, maintained the kennels, a nd was responsible for-4-

determining whether Smith and her dog were “qualifi ed” after the completion of training and various tests. Smith also presented evidence that Browning assign ed her what was referred to as the “psycho dog” or the “crazy dog” and instructed her to clean the kennels with a solution which caused her injury. S mith presented evidence that Browning was overheard informing two lieutenants, “Not to worry about it . . . [t]he cunt can’t handle that crazy dog. He’ll eat her up and she’ll be out of here and she’ll be off K-9.” Smith testified that Brown ing told her, in reference to women in Vietnam, “we . . . f*** ‘em and stick gren ades [in their genitalia].” Smith also testified that Browning told her the Uni ted States Police Canine Association does not like women dog handlers becaus e they have a “certain odor,” and later asked if she had been menstruating when the dog bit her. The City presented evidence that Browning submittedhis training schedules to another supervisor for approval, was not a parti cipant in Smith’s performance evaluations, and was not authorized to discipline S mith or to make decisions concerning her leave. Further, the City presented evidence that the City’s collective bargaining agreement (“CBA”) does not li st the rank of sergeant as a supervisory rank. At the close of Smith’s evidence , the City moved for judgment as a matter of law, arguing, in part, that Smith fa iled to prove that Browning was-5-

her supervisor. The district court denied the City ’s motion, but found that Browning was not Smith’s supervisor. At the close of the evidence, the district court in structed the jury as follows: In order to establish her claim for hostile work en vironment sexual harassment under Title VII, the Plaintiff must prov e by a preponderance of the evidence each of the following essential elemen ts:

. . . . Sixth : That a specific basis exists for imputing the con duct that

created the hostile work environment to the Defenda nt City.

. . . . With regard to the Sixth element identified above, the basis for imposing liability upon an employer depends upon wh ether the alleged harassment creating the hostile work environment is committed by a supervisor or by a co-worker. When the source of the alleged harassment is a co-worker, the Plaintiff must demonstrate either that the employer failed to provide a reasonable avenue for complaint, or th at management-level employees knew or should have known about the haras sment, yet failed to take appropriate remedial action. “Management leve l employees” are defined as those supervisors who possessed substant ial authority over the terms and conditions of the harasser’s or the haras ee’s employment, such as the ability to hire, promote, discharge or discipli ne. The Court has determined that Sgt. Don Browning was not a managem ent level employee. When the sexually hostile work environment is creat ed by the actions of a supervisor, the employer is liable unless the employer meets the elements of the affirmative defense described in th e following Instruction. Smith objected to the instruction that Browning was not her supervisor. The jury returned a verdict for the City. Smith mo ved for a new trial, arguing that the district court erred in instructin g the jury that Browning was not-6-

her supervisor and in admitting the City’s training videotape into evidence. The district court denied Smith’s motion.
III. DISCUSSION This court reviews the district court’s decision to deny a motion for a new trial for abuse of discretion. Osteguin v. S. Pac. Transp. Co. , 144 F.3d 1293, 1295 (10th Cir. 1998). The denial of a motion for a new trial will be reversed “only if the trial court made a clear error of judg ment or exceeded the bounds of permissible choice in the circumstances.” Weese v. Schukman , 98 F.3d 542, 549 (10th Cir. 1996). This court, however, reviews de novo the district court’s grant of the City’s motion for judgment as a matter of law on the issue of whether Browning was Smith’s supervisor. Colorado Cross Disability Coalition v. Hermanson Family Ltd. P’ship I, 264 F.3d 999, 1001 (10th Cir. 2001). A. Instruction regarding Browning’s supervisory st atus While this court reviews the “district court’s deci sion to give a particular instruction for abuse of discretion,” the instructi ons are reviewed “in their entirety de novo to determine whether the jury was misled inany way” and “whether the jury was adequately instructed on the applicable law.” United Phosphorus, Ltd. v. Midland Fumigant, Inc. , 205 F.3d 1219, 1225 (10th Cir. 2000) (quotation omitted). Further, “[r]eversal is appropriate onlyif there was prejudicial error.”-7-

Doering ex rel. Barrett v. Copper Mountain, Inc. , 259 F.3d 1202, 1212 (10th Cir. 2001). Smith argues, by concluding as a matter of law thatBrowning was not Smith’s supervisor and by instructing the jury on this issue, the district court committed reversible error. “An employer is subjec t to vicarious liability to a victimized employee for an actionable hostile envir onment created by a supervisor with immediate (or successively higher) authority o ver the employee.” Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 765 (1998). Employers, however, ar e liable for a co-worker’s harassment of a fellow employee o nly when the employer “knew, or should have known, about the hostile workenvironment and failed to respond in an appropriate manner.” See Wright-Simmons v. City of Oklahoma City , 155 F.3d 1264, 1270 (10th Cir. 1998); see also Faragher v. City of Boca
Raton , 524 U.S. 775, 799 (1998). Whether Browning was Smith’s supervisor is dependent on whether Browning “had sufficient control over [Smith] to be considered her supervisor.” Wright-Simmons , 155 F.3d at 1271. To be considered a supervisor, one must have “the authority to affect the terms and conditions o f the victim’s employment.” Parkins v. Civil Constructors of Illinois, Inc. , 163 F.3d 1027, 1034 (7th Cir. 1998).2 The City also argues that Browning was not Smith’ s supervisor during

the relevant time period of her Title VII claims, i .e. November 1, 1997 through February 3, 1999. Because Smith alleged that Brown ing’s conduct was part of the alleged hostile work environment, however, his cond uct is considered as part of her timely hostile work environment claim. Nat’l R.R. Passenger Corp. v. -8- Smith presented evidence that Browning was responsi ble for assigning her a dog in the K-9 unit, providing her with daily one -on-one training, and ultimately deciding whether she and her dog were “qualified.” The City argues that Browning was not a supervisor because the CBA does not list the position of sergeant as a supervisory position and because Brow ning did not participate in decisions regarding Smith’s leave, annual performan ce evaluations, and discipline. While a jury could consider the City’s evidence in determining whether Browning had sufficient control over Smith to affect the terms and conditions of her employment, the record does not s upport a determination that Browning was not Smith’s supervisor as a matter of law. Because Browning directed Smith’s daily tasks from January 1995 thro ugh April 18, 1995 and was responsible for determining whether she and her dog were “qualified,” a reasonable jury could conclude that Browning was Sm ith’s supervisor. See Faragher , 524 U.S. at 781, 808 (noting that the supervisor was responsible for making daily lifeguard assignments, supervising fitness training, and controlling all aspects of day-to-day activities). Accordingly , the district court erred in not submitting to the jury the question of whether Brow ning was Smith’s supervisor. 2Morgan , 122 S. Ct. 2061, 2075 (2002) (holding that becaus e “the incidents

comprising a hostile work environment are part of o ne unlawful employment practice, the employer may be liable for all acts t hat are part of [the] single claim. In order for the charge to be timely, the employee need only file a charge within 180 or 300 days of any act that is part of the host ile work environment.”); see also Boyer v. Cordant Techs., Inc. , 316 F.3d 1137, 1140 (10th Cir. 2003) (holding that “Morgan implicitly overruled [prior] Tenth Circuit cases t o the extent these cases held that recovery on a Title VII hostile wor k environment claim is not available for acts taken outside the statutory time period where the plaintiff knew or should have known the conduct was discriminatorywhen the acts occurred”). Moreover, the district court instructed the jury th at “[i]ncidents of alleged harassment occurring prior to November 1, 1997 may be considered as part of the Plaintiff’s hostile work environment claim if they are part of a continuing pattern of discriminatory harassment.” Accordingly, the ju ry could find the City vicariously liable for Browning’s conduct even thou gh it occurred prior to November 1, 1997. See Morgan , 122 S. Ct. at 2075; See also Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton , 524 U.S. 775, 799 (1998). -9- Even though the district court erred in instructing the jury that Browning was not Smith’s supervisor, this court will not rev erse the judgment and remand for a new trial unless the error was prejudicial. See Doering , 259 F.3d at 1212. If the jury found Browning to be Smith’s supervisor , the jury could have found the City liable on Smith’s hostile work environmentclaim premised on a theory of vicarious liability. See Burlington , 524 U.S. at 765; Faragher , 524 U.S. at 799. Because the jury was instructed that Browning was n ot Smith’s supervisor, however, the jury could only have found the City li able for Browning’s harassment if it also found that the City knew, or should have known, of Browning’s harassment. See Wright-Simmons , 155 F.3d at 1270. Therefore,3 The district court instructed the jury on Smith’s constructive discharge

claim as follows: In connection with her claim for hostile work envir onment sexual harassment, the Plaintiff claims that she was constructively discharged. In order to recover damages for constructive discharge, the Plaintiff must establish her claim for hostile work environment sexual harassment, as explained in the preceding in structions, and, in addition; must prove that the Plaintiff’s working c onditions were so intolerable that any reasonable person, under the s ame circumstances, would feel forced to resign. Under the jury instructions, Smith’s constructive d ischarge claim was conditioned on her ability to prove a hostile work environment claim. Accordingly, the district court’s erroneous instruction also prejudi ced Smith with respect to her constructive discharge claim. -10- because the district court’s instruction limited th e theories of liability for Smith’s hostile work environment claim, the instruction pre judiced Smith. 3 Accordingly, the district court erred in denying Smith’s motion for a new trial on Smith’s hostile work environment claim. With respect to Smith’s retaliation claim, the dete rmination of whether Browning was a supervisor does not affect the issue of liability. Smith alleged that the City retaliated against her after she file d charges with the Equal Employment Opportunity Commission (EEOC) on August 28, 1998, and on February 3, 1999 by transferring her from the K-9 u nit and constructively discharging her. Browning, however, ceased trainin g Smith on April 18, 1995. Accordingly, although the district court erred in i nstructing the jury that-11-

Browning was not Smith’s supervisor, the instructio n was not prejudicial as to Smith’s retaliation claim. B. The City’s training videotape When the issue of whether to grant a new trial “hin ges on the admissibility of evidence,” this court reviews the “admission of the evidence for abuse of discretion.” Sanjuan v. IBP, Inc. , 160 F.3d 1291, 1296 (10th Cir. 1998). If the evidence was erroneously admitted, this court “will set aside a jury verdict only if the error prejudicially affects a substantial rightof a party.” Id . Further, “[e]vidence admitted in error can only be prejudici al if it can be reasonably concluded that . . . without such evidence, there w ould have been a contrary result.” Id . (internal quotation omitted). Smith argues that the district court erred in admi tting the City’s training videotape into evidence because the City failed to produce the videotape in discovery and failed to list the videotape as an ex hibit in the pretrial order. At trial, Smith and Loudermilk testified that the City showed a videotape in an ethics training class which depicted an officer and a conf idential informant engaging in sexual acts. In response to this testimony, the Ci ty introduced the original training videotape and the testimony of Boshell to show the absence of any depiction of sexual acts.-12-

The district court admitted the City’s videotape an d Boshell’s testimony as rebuttal evidence. While the district court noted that the City’s videotape was not listed as an exhibit in the pretrial order, the dis trict court reasoned that Smith was not unfairly prejudiced by the introduction of eith er the videotape or Boshell’s testimony. Specifically, the district court noted that the City had previously filed Boshell’s affidavit concerning the content of the C ity’s videotape in support of its motion for summary judgment. Because Boshell’s testimony and the City’s videotap e served only to rebut Smith’s and Loudermilk’s testimony, Smith was not u nfairly prejudiced by the admission of the City’s videotape or Boshell’s test imony. See Roberts v. Roadway Express, Inc. , 149 F.3d 1098, 1108 (10th Cir. 1998) (holding that the plaintiff was not unfairly prejudiced by the admiss ion of the testimony of two rebuttal witnesses); Burks v. Oklahoma Publ’g Co. , 81 F.3d 975, 980 (10th Cir. 1996) (stating that a rebuttal witness need not be listed as a witness in the pretrial order to be permitted to testify); Canady v. J.B. Hunt Transp., Inc. , 970 F.2d 710, 716 (10th Cir. 1992) (holding that the introductionof testimony that was purely rebuttal was not an abuse of discretion). Accordin gly, the district court did not abuse its discretion in admitting the City’s videot ape and Boshell’s testimony. Smith also argues that the City’s videotape should have been excluded under Title III of the Omnibus Crime Control and Sa fe Streets Act, 18 U.S.C. §§-13-

2510 – 2522, (“Title III”). Title III prohibits th e use of “any wire or oral communication [that] has been intercepted” as “evid ence in any trial, hearing, or other proceeding in or before any court . . . if th e disclosure of that information would be in violation of [Title III].” Id . § 2515. Only an “aggrieved person,” however, has standing to challenge the legality of intercepted communications under Title III. In re Berry , 521 F.2d 179, 185 (10th Cir. 1975) (holding that the “[w]itness has not shown that he was a party to anyintercepted wire or oral communication or a person against whom the intercep tion was directed. Hence, he was not an aggrieved person and has no standing to raise the claim of illegal surveillance.”); 18 U.S.C. §§ 2510(11), 2515. An “ aggrieved person” under Title III is “a person who was a party to any interceptedwire, oral, or electronic communication or a person against whom the intercep tion was directed.” 18 U.S.C. § 2510(11). Smith was not a party to the Ci ty’s videotape. Moreover, she was not a person “against whom the interception was directed.” See id

. Accordingly, Smith is not an “aggrieved person” andlacks standing to challenge the legality of the City’s videotape under Title II I. See Berry , 521 F.2d at 185.
IV. CONCLUSION For the reasons stated above, this courtaffirms in part and reverses in part the district court’s denial of Smith’s motion for new trial. The case is-14-

remanded to the district court for a new trial on Smith’s h ostile work environment and constructive discharge claims in ac cordance with this opinion.
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge