UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

LAURA RIDGELL-BOLTZ, Plaintiff-Appellant,

v. CAROLYN W. COLVIN, Acting Commissioner, United States Social Security Administration, Defendant-Appellee. No. 12-1495 (D.C. No. 1:10-CV-00252-RPM) (D. Colo.)

ORDER AND JUDGMENT *

Before GORSUCH , McKAY , and ANDERSON , Circuit Judges.
Plaintiff Laura Ridgell-Boltz brought this action against her employer, the United States Social Secur ity Administration (“SSA”), a lleging violations of Title VII of the Civil Rights Act of 1964, 42 U. S.C. §§ 2000e to 2000e-17 (“Title VII”) and the Age Discrimination in Employmen t Act, 29 U.S.C. §§ 621-34 (“ADEA”). The district court dismissed all but one claim al leging retaliatory discharge, for which

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 30, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - a jury returned a $19,000 judgment in favor of Plaintiff. She now appeals the dismissal of her other claims , and exercising jurisdiction u nder 28 U.S.C. § 1291, we dismiss in part, revers e in part, and remand for further proceedings. 1
I Plaintiff is presently employed by the SSA as an Assistant Regional Counsel. Between January 2006 and November 2007, and while acting as a Special Assistant U.S. Attorney for the SSA , she was supervised by Yvette Keesee, the Deputy Regional Counsel, and Deana Ertl-Lombardi , the Regional Chief Counsel. During this time, Plaintiff believe d that she and other women over the age of forty were being subjected to verbal abuse, heavie r workloads, greater scrutiny, and higher performance standards than men and yo unger women in their office. Underlying Plaintiff’s belief was an incident in November 2006, when two other female attorneys, Debra Meachum an d Teresa Abbott, both of whom were over forty, had their work highly criticized by Ms. Ertl-Lombardi and Ms. Keesee. At a meeting, Ms. Keesee so deni grated Ms. Abbott’s work that Ms. Abbott ran out of the room feeling physically ill. Ms. Keesee then went to Ms . Abbott’s office and forced her to revise her work for some eight hour s. The next day, Ms. Meachum tried to speak to Ms. Keesee about the revisions, but Ms. Keesee rolled her eyes, laughed, and said she did not need to speak with he r. Ms. Keesee then told Ms. Meachum to

1 The SSA initially appealed the jury ’s adverse judgment but subsequently dismissed its appeal.- 3 - get out of her way as she left her office. Shortly thereafter, Ms. Keesee had a federal police officer remove Ms. Me achum from the building. Pl aintiff saw the officer, spoke with Ms. Meachum immediately afterw ards, and agreed to contact the SSA’s equal employment opportunity (“EEO”) couns elor when Ms. Meachum told her what happened. Plaintiff contacted the EEO coun selor later that day despite her own fears of retaliation. Following this incident, Ms. Meachum a nd Ms. Abbott filed complaints of age and gender discrimination against the SSA. Both women identified Plaintiff as a witness who was being subjected to similar treatment. Indeed, Ms . Keesee frequently threatened to give Plaintiff poor perform ance reviews, place her on a performance improvement plan, and fire her. Ms. Kees ee also told her she was not performing to her job-level and lacked interpersonal sk ills, while Ms. Ertl-Lo mbardi called her sloppy. In July 2007, Ms. Keesee and Ms. Ertl-Lombardi accused Plaintiff of misconduct and making false statements in a court document. On August 1 of that year, Ms. Keesee placed Plai ntiff on administrativ e leave, and on Augu st 6, the U.S. Attorney’s Office relieved Plaintiff of her duties based on the allegations made by Ms. Keesee and Ms. Ertl-Lombardi. On November 23, 2007, Ms. Ertl-Lombardi formally terminated Plaint iff from federal service. The Merit Systems Protection Board (“M SPB”) reinstated Plaintiff with back pay and associated benefits, along with in terest, but it denied her claims of- 4 - discrimination and retaliation. Boltz v. Social Security Admin. , 111 M.S.P.B. 568 (July 9, 2009). Plaintiff then brought this action alleging a hostile work environment, wrongful discharge, and retaliation. 2 Before trial, the district court dism issed the age-based claims, ruling that damages were not available under the ADEA. The case proceeded to trial on the remaining claims and at the close of Plaintiff’s case in chief, the SSA moved for judgment as a matter of law. See Fed. R. Civ. P. 50(a). Th e district court granted the SSA’s motion on the hostile work environmen t and discriminatory discharge claims, stating that “hostile means that it’s so bad that no r easonable person would put up with it.” Aplt. App., Vol. II at 715. Plaintiff objected, arguing that the correct legal standard was whether reasona ble people would view the e nvironment as hostile, not whether a reasonable person wo uld tolerate it, but the c ourt overruled her objection. The surviving retaliatory discharge claim we nt to the jury, whic h awarded Plaintiff $19,000.00 in damages. Plaintiff then moved for a new trial, arguing that the court applied the wrong legal standard in entering judgment as a matter of law. Although the court

2 The complaint asserted a total of si x claims, including two under the Privacy Act, 5 U.S.C. § 552(a), which were voluntar ily dismissed and are not the subject of this appeal. The remaining counts consisted of two hostile work environment claims and two wrongful discharge claims, each based on age and gender discrimination and retaliation. On appeal, Plaintiff advan ces her hostile work environment claims primarily on a theory of age and gender disc rimination, although there is an isolated reference to retaliation in the heading section of her opening brief. See Aplt. Br. at 23. We follow Plaintiff’s lead and anal yze her hostile work e nvironment claim as predicated purely on age a nd gender discrimination.- 5 - acknowledged it had applied the wrong legal st andard, it denied a new trial, ruling that Plaintiff still failed to show “that she was discriminated against because of her sex and that the discriminati on was sufficiently severe or pervasive such that it altered the terms [or] conditions of her employment a nd created an abusive working environment.” Id. , Vol. I at 43. This appeal followed.
II
A. ADEA At the outset, the SSA contends that Plaintiff’s age-base d claims are moot because she has already been reinstated with back-pay a nd associated benefits. We review de novo whether the claims are moot, see Rio Grande Silvery Minnow v. Bureau of Reclamation , 601 F.3d 1096, 1122-23 (10th Cir. 2010), and agree they are. “The broad purpose of the ADEA is to insu re that older individuals who desire work will not be denied employment.” Bruno v. Western Elec. Co. , 829 F.2d 957, 967 (10th Cir. 1987). To this end, the ADEA provides for legal and equitable relief, including reinstatement, back-pay, and other pecuniary benefits a ssociated with the job, but it does not permit the recove ry of compensatory damages. See 29 U.S.C. § 633a(c) (authorizing civil actions for “legal or equitable relief”); Villescas v. Abraham , 311 F.3d 1253, 1260 (10t h Cir. 2002) (“Congress had another opportunity to enlarge the remedi es available under the federal employee ADEA when it amended Title VII and other Acts in the Civil Rights Act of 1991 to permit compensatory damages, subject to caps, and it cons picuously chose not to do so for ADEA- 6 - claims.”); Collazo v. Nicholson , 535 F.3d 41, 44-45 (1st Cir. 2008) (“[T]he [ADEA] does not allow compensatory damages for pain and suffering . . . [but permits recovery] for only those pecuniary benefits connected to the j ob relation, including unpaid wages or overtime compensation.” (citations and inte rnal quotation marks omitted)). Because Pl aintiff has already obtained all the relief available to her under the ADEA, those claims are moot. 3 B. Wrongful Discharge The SSA also contends that Plainti ff’s claim for wrongful discharge based on age and gender discrimination is moot b ecause she was awarded damages on her claim of retaliatory discharg e. According to the SSA, sh e has been compensated for her wrongful termination and any additional damages for th at injury, regardless of the theory of liability, would constitute an impermissible double recovery. We agree. “It is well established th at ‘double recovery’ is pr ecluded when alternative theories seeking the sa me relief are pled a nd tried together.” Mason v. Okla. Turnpike Auth. , 115 F.3d 1442, 1459 (10th Cir. 1997), overruled on other grounds by TW Telecom Holdings Inc. v. Caroline Internet Ltd. , 661 F.3d 495, 497 (10th Cir. 2011). A jury may allocate a single damages award between two distinct theories of

3 In her reply brief, Plaintiff contends th at she could still obtain equitable relief, including a letter from her employer explai ning that its previous accusations were unfounded. This argument is waived, however, because it was not advanced in the district court, nor does it appear in Plaintiff’s opening brief. See SCO Grp., Inc. v. Novell, Inc. , 578 F.3d 1201, 1226 (10th Cir. 2009) (“[A] party waives issues and arguments raised [in a reply br ief] for the first time.”).- 7 - liability, but “in the absence of punitive damages a plaintif f can recover no more than the loss actua lly suffered.” Medina v. Dist. of Columbia , 643 F.3d 323, 326 (D.C. Cir. 2011) (internal quotation marks omitted). Plaintiff concedes that “s he may not recover the same damages for alternative theories for her termination.” Reply Br. at 8. Yet she contends the jury could have considered alternate theories in making a single damages award. That may be, but she sought relief for only one injury and she has now been compensated for that injury. Thus, without punitive damages, any additional award for her wrongful discharge would confer a double r ecovery for the same injury. See Medina , 643 F.3d at 329-30 (reversing two damage awards base d on alternative theories of liability for one injury). The claim for age and gender-based discharge is thus moot. C. Hostile Work Environment This leaves Plaintiff’s hostile work envi ronment claim, which the district court dismissed under Fed. R. Civ. P. 50(a). Overruling Plai ntiff’s objection, the court asked her attorney what motivated the hos tile conduct. Counsel answered, “[g]ender discrimination,” to which the court replied, “I disagree. Your evidence isn’t good enough.” Aplt. App., Vol. II at 715. Afte r briefly debating the applicable Title VII standard, the court granted the SSA’s motion for judgment as a ma tter of law. We review de novo the district court’s entry of judgment as a matter of law. Williams v. W.D. Sports, N.M., Inc. , 497 F.3d 1079, 1086 (10t h Cir. 2007). “[S]uch a judgment is warranted only if the evidence points but one way and is susceptible to- 8 - no reasonable inferences supporting the party opp osing the motion.” Id. (quotation omitted). Under this standa rd, “the question is not wh ether there is literally no evidence supporting the nonmoving party but whether there is evidence upon which the jury could properly find for that party.” Owner-Operator Inde p. Drivers Ass’n Inc. v. USIS Commercial Servs., Inc. , 537 F.3d 1184, 1191 (10th Cir. 2008) (brackets and internal quotation marks omitted). In conducting our review, “[w]e must view the evidence and any inferences to be drawn therefrom most favorably to the non-moving party.” Williams , 497 F.3d at 1086 (quotation omitted). To prevail on a gender-based hostile work environment claim, a plaintiff must show that she was discriminated agains t because of her gender and “that the discrimination was sufficiently severe or perv asive such that it altered the terms or conditions of her employment and created an abusive working environment.” Morris v. City of Colorado Springs , 666 F.3d 654, 663 (10th Ci r. 2012) (internal quotation marks omitted). We evaluate “both obj ective and subjective components,” asking “whether the plaintiff was offended by the work environment and whether a reasonable person would lik ewise be offended.” Hernandez v. Valley View Hosp.
Ass’n , 684 F.3d 950, 957 ( 10th Cir. 2012) (int ernal quotation marks omitted). We also examine “the frequency of the discriminatory conduc t; its severity; whether it is physically threatening or hum iliating, or a mere offensiv e utterance; and whether it unreasonably interferes with an em ployee’s work performance.” Id. at 958 (internal quotation marks omitted). “But severity and pervasiv eness are not enough. The- 9 - plaintiff must produce evidence that she was the object of harassment because of her gender .” Chavez v. New Mexico , 397 F.3d 826, 833 (10t h Cir. 2005) (internal quotation marks omitted). Evidence of hos tility directed at coworkers may support a hostile work environment claim if a plaintiff is aware of those incidents when she was allegedly subject to a hostile work environment. See Williams , 497 F.3d at 1095. Plaintiff has marshalled enough evidence to get her cl aim before a jury. There was testimony that Ms. Kees ee was “hot temper[ed],” “abusive,” “profane,” and “loud,” and that she directed this behavior “p rimarily at the older female attorneys.” Aplt. App., Vol. I at 427. The older fema le attorneys shared th eir similar treatment and lamented who happened to be targeted on any given day. Ms. Meachum testified that Ms. Keesee consistently referred to Ms . Abbott as a “weak b itch” and criticized her for “the man she was dating.” Id. at 273. Ms. Keesee also spent 35 minutes screaming and using profanity at the top of her voice toward Carolyn Cooper, another female attorney over forty, becau se Ms. Cooper did not attend an out-of-work function. Ms. Keesee told her she wa s “spineless” and “a bad person” for not standing up to her husband, who apparently did not want her to attend the function. Id. , Vol. II at 621. Ms. Keesee then turn ed to Ms. Cooper’s pr ofessional abilities, saying she “was a poor performer” a nd should not have been hired. Id. at 621-22. There was also the episode when Ms. Ertl-Lombardi and Ms. Keesee severely criticized Ms. Meachum and Ms. Abbott for their work on a brief. Without fully reading the brief, Ms. Keesee mocked Ms. Abbott, refuse d to let her speak, and so- 10 - denigrated her legal skills th at Ms. Abbott ran out of the meeting ready to vomit. A younger female attorney reported that af terwards Ms. Keesee came to her office making fun of Ms. Abbott, “saying, ‘Can you believe how childish that was that she would—can you believe she almost threw up in my office.’” Id. at 704. Later that same day, Ms. Keesee went to Ms. Abbott’s office to wa tch her revise the brief and positioned herself in such a way that Ms. Abbott “couldn’t move unless [Ms. Keesee] took a break.” Id. , Vol. I at 381. They stayed th at night for some eight hours, until 8:00 p.m. When the other attorneys were leaving at 5:00 p.m., Ms. Abbott could hear them walking by her office. She described the experience, stating, “[I]t was almost as if . . . [Ms. Keesee wa s] bullying me and letting ev erybody know that she was in control of me, that I was going to be th e puppet, and I wasn’t going to do a thing without her permission.” Id. at 384. And the next day, when Ms. Meachum tried to ask Ms. Keesee why they had revised the brief, Ms. Keesee had her removed from the building by a federal polic e officer. Plaintiff knew th is and contacted the EEO counselor despite her own fears of retaliation. There was also testimony that Ms. Kees ee ridiculed Plaintiff, told her she lacked interpersonal skills, and threatened her with termination. There was testimony that Plaintiff was overloaded with work and so micromanaged that she could not complete her work. Accord ing to Plaintiff, she and the other older women were given more work and greater scrutiny than their male counterpa rts. Ms. Meachum confirmed that “the different treatment that [Ms. Keesee] gave to [t he men] . . . was- 11 - startling.” Id. at 267. Ms. Keesee frequently a ttended Plaintiff’s oral arguments to observe her performance, and although Ms. K eesee stated that sh e also attended the arguments of Special Assistant U.S. Attorn ey, Tom Kraus, he de nied that she ever did. Also, Ms. Meachum testified that as the lead Special Assi stant U.S. Attorney, she knew Mr. Kraus was assigned two cases for every three assigned to herself and Ms. Abbott. Ms. Meachum asked to have her workload adjusted, but no action was taken on her request while Mr. Krau s had his workload reduced. Additionally, Ms. Meachum said that Ms. Keesee would routinely chastise women at meetings. Ms. Abbott said she wa s embarrassed, humiliated, and ridiculed by Ms. Keesee. At one meeting hosted by Ms. Abbott, Ms. Keesee interrupted and announced that Ms. Abbott was disorganized and unprepared ; she then walked out of the meeting with Ms. Ertl-Lombardi, leav ing those in attendance to apologize and express their dismay at Ms. Keesee’s behavior. Ms. Cooper had a similar experience, and at other meetings hoste d by Ms. Meachum, the supervis ors would roll their eyes, appear to be sleeping, and play on their Blackberries while whis pering and giggling. They would disrupt the ag enda and belittle or denigr ate the older women in attendance. Any expression of diss ent from the women would result in admonishments and additional work moni toring. Ms. Meachum testified that Ms. Keesee’s admonishments became so pr evalent that she “c ouldn’t do [her] work without constant interruption. [She] coul dn’t complete a task without [Ms. Keesee] monitoring or denigrating whatever [she] was doing.” Id. at 280. And as with- 12 - Plaintiff, Ms. Keesee told the other olde r women they lacked interpersonal skills, were not working to their grade level, would get poor performance reviews, and risked being put on a performance impr ovement plan or being fired. See id. at 109 (Plaintiff chastised for mistak es and frequently threatened with termination, being put on a performance improvement plan, or receiving a poor evaluation), id. at 281-82 (Meachum told she lacked in terpersonal skills and was not performing to her grade level), id. at 385-86 (Abbott threatened with a poor evaluation, being put on a performance improvement pl an, and termination), id. , Vol. II at 621-22 (Cooper told she was a poor performer, was not doing a good job, and shoul d not have been hired). Things grew worse for Plaintiff when the investigation be gan in Ms. Meachum and Ms. Abbott’s discrimination complaints . Ms. Ertl-Lombardi and Ms. Keesee accused Plaintiff of professional misconduct and lying in a court document. The allegation of misconduct concerned a show-cau se order entered in one of Plaintiff’s cases. The U.S. Attorney’s Office had pla nned to defend Plaintiff in the matter, but Ms. Keesee intervened and persuaded the U.S. Attorney’s Office to change strategies, which left Plaintiff to provi de her own defense. In a separate matter, Ms. Keesee accused Plaintiff of lying in a court document. Plaintiff had sought an extension of time to file a brief after th e filing deadline and asserted she did not know the case had been reassigned to her, which her supervisor s claimed to be untrue. This allegation predicated a charge of ina ppropriate conduct, which eventu ally led to her dismissal, reinstatement, and award of damages on the retaliatory discharge claim.- 13 - The male attorneys were not insulated from the harsh treatment, but the evidence indicates they did not experience the severity of treatment experienced by the older women. The men confirmed that Ms. Ertl-Lombardi and Ms. Keesee were micromanagers and that Ms. Keesee nitpic ked their work. But the men were not berated at meetings when they were unprepared, nor di d they face reprisal for expressing different opinions. While Ms. Keesee accused one male attorney of lying in a draft brief, she merely had a conversat ion with him about it. He testified that neither Ms. Keesee nor Ms. Ertl-Lombardi th reatened to fire him or put him on a performance improvement plan. He also said they did not tell him that he lacked interpersonal skills or was working below his grade leve l. Ms. Keesee similarly accused Mr. Kraus of lying in a brief, but ra ther than terminate hi m, she required that he clarify the misrepresentation to the c ourt. In still another matter, Mr. Kraus acknowledged he had mischaracterized a c ourt filing once, but he said Ms. Keesee did not discover it. There was also te stimony that Ms. Keesee yelled at men, including Mr. Kraus, who raised his voice as well, yet she did not have him removed by a federal police officer. And the one time she had Mr. Kraus re vise his work in her presence, she stayed for only one hour, not eight. Moreover, this happened after Plaintiff, Ms. Meachum, and Ms. Abbott f iled their discrimina tion complaints. Finally, there was evidence that Ms. Ke esee was “very polite [and] interactive” with the men, id. , Vol. I at 426, but directed he r rude and intimidating behavior “primarily at the olde r female attorneys,” id. at 427. Another female attorney who- 14 - was younger than forty confirmed that Ms. Keesee was “especially hard” on “women over forty.” Id. , Vol. II at 705. And a fema le paralegal stated that Ms. Ertl-Lombardi was rude to the older women but would laugh and joke with the

men. Id. at 536-37. She similarly stated that Ms. Keesee tried to intimidate people and was rude to women but not men. Id. at 538. This testimony could lead a jury to properly conclude th at Plaintiff was subjected to a hostile work environment on account of her gender. Therefore, viewing the reasonable inferenc es in favor of Plaintiff as the non-moving party, the evidence does not point “but one way,” Williams , 497 F.3d at 1086 (internal quotation marks omitted). Although we express no opi nion on the merits of Plaintiff’s hostile work enviro nment claim, we conclude th e district court erred in entering judgment on it as a matter of law.
III Plaintiff’s appeal from the dismissal of her age-based claims under the ADEA is dismissed as moot, as is her appeal from the dismissa l of her wrongful discharge claims. The district court’ s dismissal of her Title VII hostile work environment claim is reversed, and the case is remanded to the district court fo r further proceedings consistent with this order and judgment. Entered for the Court
Monroe G. McKay Circuit Judge