*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

December 22, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GRETA SEMSROTH; KIM

WAREHIME; and SARA VOYLES,

on behalf of themselves and all others

similarly situated,

Plaintiffs-Appellants,

v.

CITY OF WICHITA; and CHIEF

NORMAN WILLIAMS, individually

and in his official capacity, 

Defendants-Appellees.

No. 07-3155

(D.C. No. 6:04-CV-01245-MLB)

(D. Kan.)

ORDER AND JUDGMENT*

Before LUCERO, HOLLOWAY, and EBEL, Circuit Judges.

Plaintiffs-Appellants appeal the district court’s decision to grant summary

judgment to Defendants-Appellees on their claims brought pursuant to Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. We have

jurisdiction under 28 U.S.C. § 1291. We AFFIRM in part, REVERSE in part, and
1

 The district court dismissed Officer Heather Plush’s Title VII claims for

failure to exhaust administrative remedies. The Officers do not appeal this

decision.

2

 The district court’s thoughtful and comprehensive memorandum and order

discusses the facts of this case in great detail. See Semsroth v. City of Wichita,

No. 04-1245-MLB, 2007 WL 1246223 (D. Kan. Apr. 27, 2007). Accordingly, we

will not repeat the district court’s efforts and offer only a brief summary of the

facts here.

2

REMAND.

I.

A. Factual Background

Officer Greta Semsroth, Officer Sara Voyles, and Officer Kim Warehime

(collectively, the “Officers”) have all served as officers with the Wichita Police

Department (the “Department”) for at least the last seven years.1

 The Officers

alleged that during their tenure with the Department, their supervisors

discriminated and retaliated against them by subjecting them to disparate

treatment, disparate impact, retaliation, and a hostile work environment, all in

violation of Title VII. Given the distinct nature of their claims, we briefly

explain each officer’s allegations separately.2

 Due to Title VII’s timely filing

requirements discussed below, we outline here only those allegations that involve

events that fall within 300 days from when each officer filed her EEOC intake

questionnaire.
3

i. Officer Semsroth

Officer Semsroth alleged that her superior officers and colleagues at the

Department repeatedly subjected her to sexual discrimination during her tenure

with the Department. Six of Officer Semsroth’s allegations involved conduct that

fell within the 300-day window. First, she alleged that the Department failed to

discipline other officers for referring to her in a derogatory fashion. Second, she

alleged that other officers failed to respond to her requests for back up because of

her gender. Third, she alleged that several supervisory officers “interrogated” her

after several female officers held a women’s luncheon to discuss their concerns

regarding the Department. Fourth, she alleged that the Department transferred her

to a less desirable beat assignment in retaliation for meeting with the city’s

Affirmative Action Administrator. Fifth, she alleged that the Department

retaliated against her by making negative notations in her personnel file. Lastly,

she alleged that the Department refused to display an EEOC poster in spite of her

several requests. 

ii. Officer Voyles

Officer Voyles also alleged that her superior officers and colleagues at the

Department subjected her to sexual discrimination. Two of those allegations

involved conduct that occurred during the 300-day window. First, Voyles alleged

that during her pregnancy, Lieutenant Bohannon made numerous comments

regarding her weight and eating habits. Second, Voyles alleged that she was
3

 The Officers do not appeal the district court’s decision to deny their class

certification motion.

4

verbally reprimanded in front of media personnel after she complained about

Lieutenant Bohannon’s conduct. 

iii. Officer Warehime

Officer Warehime made similar allegations of sexual discrimination in her

EEOC intake questionnaire. Three of those allegations involved conduct that

occurred during the 300-day window. First, Officer Warehime alleged that the

Department subjected her to disparate disciplinary treatment arising from a charge

of conduct unbecoming of an officer. Second, she alleged that three lieutenants

interrogated her regarding a “women’s luncheon” attended by female officers. 

Third, she alleged that the Department denied her a temporary rotation after her

attorney sent the Department a letter regarding her concerns about sexual

discrimination. 

B. Procedural Background

After filing their intake questionnaires with the EEOC, the Officers filed a

class action in the United States District Court for the District of Kansas against

the defendants. The district court denied the plaintiffs’ motion for class

certification and dismissed the claims against Chief Williams in his official

capacity.3

 The district court then granted the defendants summary judgment on

the plaintiffs’ individual Title VII claims for disparate treatment, hostile work
4

 The plaintiffs also pursued a 42 U.S.C. § 1983 claim against Chief

Williams in his personal capacity. The district court granted Chief Williams

summary judgment on this claim, and on appeal, the plaintiffs expressly waived

any argument on that claim. Accordingly, we do not address this issue.

5

environment, and disparate impact. The plaintiffs now appeal that final decision.4

II.

We review the district court’s grant of summary judgment de novo. Montes

v. Vail Clinic, Inc., 497 F.3d 1160, 1163 (10th Cir. 2007). Summary judgment is

appropriate where “the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). 

During our de novo review, we view the evidence in the record in the light most

favorable to the nonmoving party, in this case, the Officers. Jones v. U.P.S., Inc.,

502 F.3d 1176, 1183 (10th Cir. 2007).

A.

Before considering the merits, we must first determine whether the Officers

complied with three general prerequisites to bring a civil suit pursuant to Title

VII. Prior to filing such a suit in federal court, plaintiffs must administratively

exhaust their claims in a timely fashion by filing a charge with the EEOC. 

Montes, 497 F.3d at 1163. We address this requirement in three steps. First, we

analyze whether the document each plaintiff filed with the EEOC constitutes a

charge. Second, we determine which allegations included in the charge, if any,
6

are timely. Third, we determine whether the federal claims are included within

the scope of those timely allegations.

i. EEOC charge

While the contours of the requirement to file a charge may appear

straightforward, we have not resolved what type of document constitutes a charge

for the purposes of Title VII. The Officers contend that their EEOC intake

questionnaires qualify as charge documents because they constitute requests for

the EEOC to take action on the alleged discrimination. We partially agree. As

discussed more completely below, Officer Semsroth and Officer Voyles took

sufficient steps to reasonably indicate that they sought the EEOC to take action on

their behalf based on the allegations included in their intake questionnaires. 

Accordingly, these documents constitute charges. The record, however, does not

indicate that Officer Warehime took similar steps, and therefore, we dismiss her

appeal because she did not file a charge with the EEOC.

Section 2000e-5(b) provides the EEOC with broad discretion to determine

the information necessary in a charge. See 42 U.S.C. § 2000e-5(b); Jones, 502

F.3d at 1183–84. Pursuant to this discretion, the EEOC regulations dictate that a

charge should contain the following information: (i) the name, address, and

telephone number of the person bringing the charge; (ii) the name and address of

the person the charge is brought against; (iii) a statement of the facts underlying

the allegations; (iv) the number of employees employed by the relevant employer;
5

 While the Holowecki Court addressed the ADEA, we cite cases addressing

the ADEA’s filing requirements in the Title VII context because “the filing

provisions of the ADEA and Title VII are virtually in haec verba, the former

having been patterned after the latter.” Montes, 497 F.3d at 1164 n.6 (internal

quotation marks omitted) (quoting E.E.O.C. v. Commercial Office Prods. Co., 486

U.S. 107, 123–24 (1988)).

7

and (v) a statement addressing whether charges have been brought before a state

or local employment practices agency. 29 C.F.R. § 1601.12(a). The regulation

also dictates, however, that strict compliance with these requirements is not

necessary so long as the charge the Commission receives is “a written statement

sufficiently precise to identify the parties, and to describe generally the action or

practices complained of.” Id. § 1601.12(b); see also Jones, 502 F.3d at 1184.

Against a similar regulatory backdrop, the Supreme Court recently

addressed what constitutes a charge for the purposes of the Age Discrimination in

Employment Act (ADEA). See Federal Express Corp. v. Holowecki, 128 S. Ct.

1147 (2008).5

 The Court held that a document constitutes a charge if it

(i) provides the minimum information the regulations require, and (ii) can “be

reasonably construed as a request for the agency to take remedial action to protect

the employee’s rights or otherwise settle a dispute between the employer and

employee.” Id. at 1157–58. Importantly, the Court explained that these

requirements would allow the EEOC to fulfill its dual role of “enforcing

antidiscrimination laws and disseminating information about those laws to the

public.” Id. at 1157. Moreover, the Court rejected an interpretation requiring
8

only the minimal information mandated by the regulations because such a

minimal standard would likely discourage individuals from seeking information

from the EEOC due to concerns that the Commission would treat the information

requests as charges. Id.

Before Holowecki, we had held that a document filed with the EEOC

constitutes a charge where: (i) the document satisfies the requirements of

§ 1601.12; (ii) the evidence demonstrated that the complainant sought to activate

the EEOC’s administrative process; and (iii) the EEOC treated the document as a

charge. Jones, 502 F.3d at 1183. The Holowecki Court’s interpretation of what

constitutes a charge, however, requires us to clarify two points regarding the

factors discussed in Jones. With respect to the second factor, we must now

evaluate whether a filing constitutes a complainant’s request for remedial action

from an objective viewpoint only. See Holowecki, 128 S. Ct. at 1158 (“[T]he

filing must be examined from the standpoint of an objective observer to determine

whether, by a reasonable construction of its terms, the filer requests the agency to

activate its machinery and remedial processes . . . .”). With respect to the third

factor, we now make plain that we do not require evidence that the EEOC actually

treated a filing as a charge to construe that document as such. See id. at 1158–59. 

Instead, the EEOC’s subsequent conduct merely informs our determination

regarding whether the document can reasonably be construed as a request for

agency action.
9

With this standard in mind, we turn to consider whether each plaintiff filed

a charge with the EEOC. The Officers each filed separate intake questionnaires

with the EEOC in March 2004. These questionnaires are similarly formatted and

contain all five types of information required by 29 C.F.R. § 1601.12. Standing

alone, these questionnaires cannot reasonably be construed as “a request for the

agency to take remedial action” because they relate only factual information about

the Officers’ allegations of discrimination and make no requests of the agency. 

See, e.g., Holowecki, 128 S. Ct. at 1159–60 (holding that an intake questionnaire

constituted a charge because of an attached affidavit that stated “[p]lease force

Federal Express to end their age discrimination plan so we can finish out our

careers absent the unfairness and hostile work environment . . . .”). In addition,

the language of the intake questionnaire form does not suggest that an employee

requests action against her employer simply by filling out the form. Instead, the

form merely requests information using statements like: “Please tell us the harm

that you experienced” and “Why do you believe that your harm was for the

[discriminatory] reason(s) stated in the previous question?” 

Our inquiry, however, does not end with the intake questionnaire. After

submitting the questionnaires to the EEOC, each plaintiff received one or two

letters from the EEOC. These letters informed the Officers that they had not filed

charges as a result of the questionnaires and directed the Officers to take

additional steps, including contacting the EEOC, if they wished to file a charge. 
10

The letters also indicated that if the Officers elected to file a charge, “it is likely

the case would immediately be closed. A Dismissal/Right-to-Sue document

would then be issued to you.” The record indicates that only two of the Officers

(Semsroth and Voyles) received Right-to-Sue letters. 

Given the discourse in the letters from the EEOC as well as the existence of

the Right-to-Sue letters, we conclude that as a result of their subsequent actions,

Officer Semsroth’s and Officer Voyles’s intake questionnaires reasonably

constitute charges for the purposes of Title VII. The letters from the EEOC

indicate that the Officers needed to take additional steps to demonstrate the

requisite desire to start the EEOC administrative process and that if they did so,

the EEOC would likely close their cases and issue Right-to-Sue letters. The

presence of the Right-to-Sue letters suggests that Semsroth and Voyles in fact

took the affirmative steps necessary to signal their desire to the EEOC to start its

administrative process. We stress that the EEOC’s subsequent conduct is not a

necessary prerequisite for filing a charge. Here, we consider the EEOC’s

subsequent conduct only as evidence that Semsroth and Voyles must have

contacted the EEOC subsequent to filing the intake questionnaire to request

EEOC action, because the EEOC had advised these two plaintiffs that it would

not issue right-to-sue letters to them in the absence of express requests for action. 

Accordingly, we conclude that Semsroth and Voyles filed charges with the EEOC.

The lack of a Right-to-Sue letter for Officer Warehime, on the other hand,
6

 The Officers’ Supplemental Brief contends that a charge filed with the

EEOC by any of the Officers satisfies the charge requirements of Title VII via the

“single filing rule.” The single filing rule, however, does not save Officer

Warehime’s claims because the Officers’ allegations of discrimination—involving

different superior officers and different incidents—demonstrate that they are not

similarly situated. See, e.g., Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1198–99

(10th Cir. 2004) (applying the “single filing rule” where, inter alia, the plaintiffs

were similarly situated because their age discrimination claims all involved the

same termination event). Although both Officer Warehime and Officer Semsroth

alleged they were interrogated regarding women’s luncheons, those interrogations

were separated by three months and there is no indication that the same superior

officers conducted both interrogations. Thus, the single filing rule does not

apply.

7

 We have held that Kansas is a “deferral” state for the purposes of Title

VII. See Brown v. Unified Sch. Dist. 501, Topeka Pub. Schs., 465 F.3d 1184,

1186 (10th Cir. 2006). Accordingly, pursuant to § 2000e-5(e)(1), the plaintiffs

had to file their EEOC charges within 300 (rather than 180) days. 42 U.S.C.

(continued...)

11

suggests that Officer Warehime did not take the steps necessary to demonstrate a

desire to start the EEOC process. The EEOC letter to Officer Warehime notes

that Warehime met with an EEOC Senior Investigator, but nothing in the record

suggests that Warehime requested that the EEOC start its process during that

interview. Without additional evidence, Officer Warehime’s intake questionnaire

cannot be construed as a request for the EEOC to take action, and accordingly, we

conclude that Officer Warehime failed to file a charge with the EEOC. We

therefore dismiss her appeal.6

ii. Timely allegations

A plaintiff’s allegation is timely if she files her EEOC charge within 300

days of the alleged unlawful employment practice.7

 Croy v. Cobe Labs., Inc., 345
7

(...continued)

§ 2000e-5(e)(1).

12

F.3d 1199, 1202 (10th Cir. 2003). The Officers contend, however, that the

district court wrongly applied the 300-day time limit because the continuing

violations doctrine enables courts to consider allegations involving conduct that

occurred beyond that period for purposes of the pattern or practice method of

proof. In the past, we have noted that the continuing violations doctrine is viable

only for hostile work environment claims, but the Morgan Court expressly left

open whether the continuing violations doctrine applied to the pattern or practice

method of proof. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115

n.9 (2002) (“We have no occasion here to consider the timely filing question with

respect to ‘pattern-or-practice’ claims brought by private litigants as none are at

issue here.”). Since Morgan, we have only applied the continuing violations

doctrine to hostile work environment claims; however, we have not had the

occasion to address the pattern or practice issue left open by the Morgan Court. 

We now conclude that the pattern or practice method of proof is available only to

the government and class actions. Accordingly, we again decline to address

whether the continuing violations doctrine applies to the pattern or practice

method of proof.

The pattern-or-practice method of proving discrimination has its origins in

42 U.S.C. § 2000e-6(a), which states that the Attorney General may bring a civil
13

action against an employer on behalf of a protected group. To prevail in such an

action, the Government must prove that the employer “is engaged in a pattern or

practice of resistance to the full enjoyment of any of the rights secured by the

subchapter.” 42 U.S.C. § 2000e-6(a). In the seminal case on the pattern-orpractice method of proof, the Supreme Court implicitly extended this method of

proof to class actions brought by private parties. Int’l Bhd. of Teamsters v.

United States, 431 U.S. 324, 357–60 (1977). The Supreme Court, however, has

not extended this method of proof to claims brought by individual plaintiffs. 

Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 761 (4th Cir. 1998), vacated on

other grounds, 527 U.S. 1031 (1999).

The pattern-or-practice method of proof and the method of proof used in a

typical Title VII discrimination claim require different steps to prove a claim of

discrimination. Pursuant to Teamsters, the pattern-or-practice method of proof

involves two stages. At the first stage, the plaintiff must establish the employer’s

liability by “demonstrat[ing] that unlawful discrimination has been a regular

procedure or policy followed by an employer or group of employers.” Teamsters,

431 U.S. at 360. If the plaintiff carries this burden, then the employer may

defend its liability by showing that the “[plaintiff’s] proof is either inaccurate or

insignificant . . . [by] provid[ing] a nondiscriminatory explanation for the

apparently discriminatory result.” Id. at 360–61 & 360 n.46. If the defendant

fails to establish a nondiscriminatory reason, then the second stage requires the
14

court to fashion a proper remedy on the presumption that a violation has occurred. 

Id. at 361. If the plaintiff does not provide any additional evidence, the court

may impose only prospective remedies. Id. If the plaintiff demonstrates that the

employer subjected a particular individual to an adverse employment action, that

employee may receive damages. Id. at 361–62.

In contrast, a typical Title VII claim resolves issues of proof by relying on

the burden-shifting method of proof from McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). Under McDonnell Douglas, a plaintiff bears the initial

burden and must demonstrate a prima facie case of discrimination in violation of

Title VII. Id. at 802. If the plaintiff successfully makes a prima facie claim, the

burden shifts to the employer to “articulate some legitimate, nondiscriminatory

reason” for the adverse employment action. Id. If the employer carries that

burden of production, then the plaintiff must show that the employer’s reason is

merely a pretext for discrimination. Id. at 804. 

Several of our sister circuits, having noted the differences between these

two methods of proof, have held that individual, private plaintiffs may not utilize

the pattern-or-practice method of proof. For example, in Lowery, the Fourth

Circuit distinguished these two methods of proof for two reasons. 158 F.3d at

761–62. First, the court noted that a plaintiff’s burden under the pattern-orpractice method requires the plaintiff to prove only the existence of a

discriminatory policy rather than all elements of a prima facie case of
15

discrimination. Id. at 761. The court found this difference problematic because

the Supreme Court has never allowed an individual plaintiff to shift the burden to

the employer without first demonstrating all aspects of a prima facie case. Id.

Second, the Fourth Circuit also distinguished these methods of proof based on the

available remedies. Id. The court noted that under the pattern-or-practice

method, only prospective relief was available, unless the plaintiffs offered

additional proof. Id.; see also Teamsters, 431 U.S. at 361. Because of these

differences, and because the Supreme Court has never extended the pattern-orpractice method to individual plaintiffs, the court declined to allow individual

plaintiffs to make their case using the pattern-or-practice method. Lowery, 158

F.3d at 761.

Other circuits have followed the Fourth Circuit’s lead. The Fifth Circuit

held that the pattern-or-practice method was inappropriate for individual plaintiffs

because the Supreme Court had not extended this method beyond class actions

and cases brought by the Government. Celestine v. Petroleos de Venezuella SA,

266 F.3d 343, 356 (5th Cir. 2001). The Sixth Circuit largely echoed Lowery

when it held that “[w]e subscribe to the rationale that a pattern-or-practice claim

is focused on establishing a policy of discrimination; because it does not address

individual hiring decisions, it is inappropriate as a vehicle for proving

discrimination in an individual case.” Bacon v. Honda of Am. Mfg., Inc., 370

F.3d 565, 575 (6th Cir. 2004). The Seventh Circuit has also cautioned that
8

 Due to the applicability of the continuing violations doctrine to hostile

(continued...)

16

language typical of the pattern-or-practice method was “misplaced” in an

individual Title VII suit. Babrocky v. Jewel Food Co., 773 F.2d 857, 866 n.6 (7th

Cir. 1985). But see Davis v. Califano, 613 F.2d 957, 963 (D.C. Cir. 1979)

(suggesting that the rationale of a pattern or practice claim similarly applies in a

cause of action brought by an individual).

In light of the distinctions between the two methods of proof, we agree with

the strong majority of our sister circuits. The disparities between both of these

methods of proof and the remedies available demonstrate that the pattern-orpractice method should be reserved for government actions or plaintiffs in class

actions to establish the presence of a discriminatory policy, rather than to prove

an individual claim. See Lowery, 158 F.3d at 761 (“The Supreme Court has never

applied the Teamsters method of proof in a private, non-class suit charging

employment discrimination. Rather, the Court has noted that there is a ‘manifest’

and ‘crucial’ difference between an individual’s claim of discrimination and a

class action alleging a general pattern or practice of discrimination.”). Therefore,

we hold that individual plaintiffs may not utilize the pattern or practice method of

proof in Title VII suits. Accordingly, only those allegations addressing conduct

that occurred within the 300-day window are timely for the purposes of the

disparate treatment, disparate impact, and retaliation claims.8
8

(...continued)

work environment claims, we address which allegations are timely for those

claims below.

9

Plaintiffs arguably raised only one of these two allegations in their

complaint, and the pretrial order did not include either allegation. Nor did

Plaintiffs specifically address these allegations in their opening brief filed with

this court. 

17

In the instant case, several of the Officers’ allegations are untimely. 

Semsroth’s EEOC administrative charge includes eight separate claims. Semsroth

filed the charge on March 11, 2004, and therefore, the 300-day filing period

began on May 16, 2003. Two of Semsroth’s allegations—her allegations

regarding being passed over for awards and her allegation regarding the picture of

an award being placed in her locker—involved conduct that occurred before May

16, 2003, and thus, the district court properly excluded these allegations. The

court also properly excluded the last two allegations in Semsroth’s EEOC charge

because the Officers did not include any mention of them in their response to the

defendants’ motion for summary judgment, and accordingly, these allegations

were not before the district court.9

 Thus, the district court correctly allowed only

four of the eight allegations included in Semsroth’s administrative charge. These

allegations include: (i) the Department retaliated against her by transferring her to

a beat assignment with restricted experience and career advancement

opportunities; (ii) a supervising officer told her that other officers referred to her

as a “bitch” and then failed to discipline those officers; (iii) the Department failed
10 The Officers’ argument rests on Ingels v. Thiokol Corp., 42 F.3d 616

(10th Cir. 1994). We abrogated the holding in Ingels, however, after the Supreme

Court handed down its decision in Morgan. See Martinez v. Potter, 347 F.3d

(continued...)

18

to take disciplinary action against an officer that failed to give Semsroth proper

backup support during an emergency call; and (iv) a supervising officer 

“interrogated” her regarding a women’s only luncheon for female police officers.

Voyles’s EEOC charge included five separate allegations. She filed her

charge on March 18, 2004, and her 300-day filing period therefore began on May

23, 2003. Three of these allegations involved conduct that occurred prior to May

23, 2003, and thus, are time barred. The district court properly allowed the

remaining two allegations: (i) an allegation regarding a supervisor’s negative and

derogatory comments regarding Voyles’s body and eating habits made while

Voyles was pregnant; and (ii) an allegation regarding an oral reprimand from a

supervisor in front of various media personnel. 

iii. Scope of exhausted claims

As a final matter on this issue, the Officers contend that the district court

erroneously restricted the scope of their exhausted claims. The Officers assert

that they exhausted any claim that is “reasonably related” to the allegations made

in their EEOC charges. Unfortunately, the Officers cite abrogated case law to

make their argument, and in light of more recent precedent, this argument lacks

persuasive force.10 It is now well established that “each discrete [discriminatory]
10(...continued)

1208, 1210–11 (10th Cir. 2003).

11 The Officers contend that we must apply a modified McDonnell Douglas

burden-shifting framework to take into account the mixed motive approach the

Supreme Court addressed in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). We

doubt that the Costa Court modified that framework because the Court did not

address or cite McDonnell Douglas in that opinion; however, we need not resolve

that issue here. Both the McDonnell Douglas and the mixed motive approaches

require a demonstration that a discriminatory motive played some role in the

employment decision at issue. With two exceptions, the Officers failed to present

evidence through any of these methods that a discriminatory motive played a role

(continued...)

19

action constitutes its own unlawful practice for which administrative remedies

must be exhausted.” Annett v. Univ. of Kan., 371 F.3d 1233, 1238 (10th Cir.

2004) (quotation marks omitted). Here, the district court restricted its analysis to

the allegations the Officers exhausted by including them in their EEOC

questionnaires, and therefore, we conclude that the district court properly

declined to consider the additional allegations the Officers did not include in the

EEOC questionnaires.

B.

Shifting our attention to the merits, the Officers contend that the district

court wrongly granted the defendants summary judgment because genuine issues

of material fact remain regarding the Officers’ Title VII claims. We agree only in

part. After reviewing the record and construing the evidence in the light most

favorable to the Officers, we conclude that the district court correctly granted the

defendants summary judgment on most of the Officers’ Title VII claims.11 But we
11(...continued)

in the employment decisions at issue in the case at bar. We specifically address

below the mixed-motive theory that applies to retaliation claims. Otherwise, as

discussed below, the district court properly granted summary judgment under

either approach. 

12 We note, however, that the concept of an adverse employment action

differs in the context of Title VII anti-retaliation claims. See Piercy, 480 F.3d at

1203 n.12 (noting that Burlington Northern & Santa Fe Railway v. White, 548

U.S. 53 (2006), modified the contours of adverse employment action only for the

(continued...)

20

REVERSE the district court’s decision to grant the defendants summary judgment

on Officer Semsroth’s claims alleging retaliation and a hostile work environment. 

We, therefore, REMAND those two claims for trial.

i. Disparate treatment

To establish a prima facie case of disparate treatment, a plaintiff must

demonstrate: (i) that she belongs to a protected class; (ii) that she suffered from

an adverse employment action; and (iii) that her employer treated similarly

situated employees differently. Orr v. City of Albuquerque, 417 F.3d 1144, 1149

(10th Cir. 2005). Adverse employment action includes “significant change in

employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change

in benefits.” Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir. 2007) (quotation

marks omitted) (quoting Hillig v. Rumsfeld, 381 F.3d 1028, 1032–33 (10th Cir.

2004)). In other words, “a mere inconvenience or an alteration of job

responsibilities” will not constitute an adverse employment action.12 Id.
12(...continued)

purposes of retaliation claims).

13 For clarity’s sake, we list here Semsroth’s and Voyles’s factual

allegations that support their claims of disparate treatment. Semsroth has two

actionable claims for disparate treatment relating to discipline: (i) supervisors

telling Semsroth that other officers referred to her as a “bitch” and failing to

discipline those officers for their comments; and (ii) supervisors failing to

discipline a fellow officer for failing to provide backup to Semsroth. Voyles’s

one actionable claim for disparate disciplinary treatment relates to an oral

reprimand from a supervisor in front of various media personnel. 

21

(quotation marks omitted) To be similarly situated, employees must “deal with

the same supervisor and [be] subject to the same standards governing performance

evaluation and discipline.” McGowan v. City of Eufala, 472 F.3d 736, 745 (10th

Cir. 2006) (quotation marks omitted). 

Turning to the instant case, it is clear that the district court properly

granted the defendants summary judgment on all the disparate treatment claims.13

Semsroth’s two disparate treatment claims fail to establish a prima facie

discrimination claim for two reasons. First, neither event constitutes an adverse

employment action. Neither the record nor the Officers’ brief indicates what

adverse effect, if any, Semsroth’s employment suffered due to the lack of

disciplinary actions taken against other officers. Second, the record does not

indicate that the Department treated Semsroth differently from other officers

because Semsroth did not face disciplinary action in similar circumstances. 

Voyles also fails to establish a prima facie claim because she did not

demonstrate that the reprimand she received constituted an adverse employment
22

action. “A written warning may be an adverse employment action only if it

effects a significant change in the plaintiff’s employment status.” Haynes v.

Level 3 Commc’ns, LLC, 456 F.3d 1215, 1224 (10th Cir. 2006). Here, Voyles

presented no evidence that the reprimand affected her status. Accordingly,

summary judgment on the Officers’ disparate treatment claims was proper

because they did not establish the required elements for a prima facie case.

ii. Disparate impact

Unlike a disparate treatment claim, a disparate impact claim does not

require a plaintiff to demonstrate intentional discrimination. Carpenter v. Boeing

Co., 456 F.3d 1183, 1187 (10th Cir. 2006). Instead, to establish a prima facie

claim of disparate impact, a plaintiff must demonstrate that (i) a specific

identifiable employment practice or policy caused (ii) a significant disparate

impact on a protected group. Bullington v. United Air Lines, Inc., 186 F.3d 1301,

1312 (10th Cir. 1999), overruled on other grounds by Morgan, 536 U.S. 101; see

also 42 U.S.C. § 2000e-2(k)(1)(A). This burden is not easily shouldered; a

plaintiff “must demonstrate that it is the application of a specific or particular

employment practice that has created the disparate impact under attack.” Boeing,

456 F.3d at 1193 (quoting Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657

(1989), superseded by statute on other grounds as recognized in Raytheon Co. v.

Hernandez, 540 U.S. 44, 52-53 (2003)). If the plaintiff successfully bears this

burden, then the burden shifts to the defendant “to show that the challenged
23

practice is job related and consistent with business necessity.” Bullington, 186

F.3d at 1312. If the defendant satisfies its burden, the final step requires the

plaintiff to “suggest an alternative employment practice that serves the

employer’s legitimate employment goals yet lacks the undesired discriminatory

effect.” Id. 

In the instant case, the Officers object to “excessive subjectivity in

promotions, discipline, hiring, and terminations.” As noted above, only

administratively exhausted claims are actionable. Here, the Officers’ EEOC

charges do not specifically reference specific employment practices that resulted

in disparate impact, nor do they include any factual allegations that would give

rise to a reasonable expectation of an administrative investigation for a claim of

disparate impact. See Jones, 502 F.3d at 1186 (noting that we determine if a

claim is administratively exhausted by analyzing “the scope of the administrative

investigation that can reasonably be expected to follow from the discriminatory

acts alleged in the administrative charge”). Accordingly, the district court

correctly granted defendants summary judgment on the Officers’ disparate impact

claims.

iii. Retaliation

Title VII explicitly prohibits retaliation against any employee who brings
14 Section 2000e-3(a) provides:

It shall be an unlawful employment practice for an employer to

discriminate against any of his employees . . . because he has

opposed any practice made an unlawful employment practice by this

subchapter, or because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing

under this subchapter.

42 U.S.C. § 2000e-3(a).

24

charges of discrimination. See 42 U.S.C. § 2000e-3.14 In this case, only

Semsroth exhausted a retaliation claim, alleging the Department retaliated against

her for complaining to the Department’s affirmative action administrator, Susan

Leiker, about the unequal treatment the Department affords female officers. A

few weeks after Semsroth raised this complaint, she was transferred to Beat 39. 

Beat 39 is not an assignment that any officer wants; it is referred to as a

“banishment beat.” Beat 39 provides diminished opportunities to gain experience

and advance one’s career because there are few calls on this beat, and there are no

calls involving serious crime or high-profile incidents. Beat 39 also provides a

more limited opportunity for overtime as compared to most other beats. Usually

the Department assigns new officers to Beat 39, or an officer who is being

disciplined. 

“To prevail on a Title VII retaliation claim, a plaintiff must establish that

retaliation played a part in the employment decision and may choose to satisfy

this burden in two ways.” Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1224-25

(10th Cir. 2008); see also Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 549
15“Once the plaintiff proves that retaliatory animus was a motivating factor,

the burden of persuasion shifts to the defendant to prove that it would have taken

the same action absent the retaliatory motive.” Fye, 516 F.3d at 1225. If the

defendant is able to make this showing, the defendant will not be relieved of

liability, but the plaintiff’s remedies may be limited. See 42 U.S.C.

§ 2000e-5(g)(2)(B); see also Davey v. Lockheed Martin Corp., 301 F. 3d 1204,

1213-14 (10th Cir. 2002); Medlock, 164 F.3d at 553 n.5. 

25

(10th Cir. 1999). First, the plaintiff “may directly show that retaliatory animus

played a ‘motivating part’ in the employment decision.” Fye, 516 F.3d at 1225. 

“If, however, the plaintiff is unable to” make that showing, “she may rely on the

familiar three-part McDonnell Douglas framework to prove that the employer’s

proffered reason for its decision is a pretext for retaliation.” Id.; see also Price

Waterhouse v. Hopkins, 490 U.S. 228, 247 n.12 (1989) (plurality), superseded in

part on other grounds by 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B)); id. at 260

(White, J., concurring). Because Semsroth has established, under a mixed-motive

theory, that a genuine issue of material fact exists as to whether retaliation played

a motivating part in the Department’s decision to transfer her to Beat 39, we need

not consider Semsroth’s retaliation claim under the McDonnell Douglas

burden-shifting analysis. 

To establish a mixed-motive claim, the plaintiff must “present[] evidence

that directly shows that retaliation played a motivating part in the employment

decision at issue.”15 Fye, 516 F.3d at 1226; see also Kelley v. City of

Albuquerque, 542 F.3d. 802, 819 n.16 (10th Cir. 2008) (noting “[a]
26

‘mixed-motive’ instruction is appropriate only in cases where direct evidence

suggests forbidden animus was a motivating factor in the employment decision”). 

However, a plaintiff can make this showing using either direct or circumstantial

evidence. See Fye, 516 F.3d at 1226. The “circumstantial evidence must be tied

‘directly’ to the retaliatory motive.” Id. That is, “[s]uch circumstantial evidence

must relate to a retaliatory reason for the employer’s action.” Id. at 1226-27

(quotation, alteration omitted). 

Semsroth has met that burden here with the deposition testimony of

Sergeant Wiley. Wiley testified that Semsroth’s supervisor, Lieutenant Hanley, in

deciding to transfer her to Beat 39, stated that he wanted to “[p]ut her out there,

she won’t have nothing to complain about.” Wiley also indicated that Hanley’s

decision may have been motivated in part by Semsroth’s troubled relationship

with her co-workers. A reasonable jury could interpret Hanley’s motivation—to

insure that Semsroth would have nothing to complain about—as retaliation for the

gender discrimination complaints she made to the City’s affirmative action

administrator, Leiker. See Fye, 516 F.3d at 1227 (considering, at summary

judgment stage of litigation, whether reasonable jury could infer a retaliatory

motive from the evidence presented). This evidence is, thus, sufficient to create a

genuine issue of material fact that precludes summary judgment on this claim. 

See Thomas v. Denny’s, Inc., 111 F.3d 1506, 1512 (10th Cir. 1997) (holding

plaintiff presented sufficient evidence in support of his mixed-motive retaliation
27

claim where two witnesses testified that “several people involved in the

[challenged] promotion decision process had stated that Mr. Thomas would not be

considered for promotion because of his discrimination complaint”); Kenworthy

v. Conoco, Inc., 979 F.2d 1462, 1471 n.5 (10th Cir. 1992) (holding plaintiff

presented sufficient evidence to support her mixed-motive retaliation claim when

warehouse supervisor testified that his supervisor held plaintiff’s prior EEOC

filing against her and had misrepresented a prior incident to those who decided

not to promote plaintiff). 

We, therefore, reverse the district court’s decision granting defendants

summary judgment on Officer Semsroth’s retaliation claim and remand that claim

to the district court for a trial. 

iv. Hostile work environment 

A plaintiff establishes a Title VII violation if she “proves that

‘discrimination based on sex has created a hostile or abusive work environment.’” 

Equal Employment Opportunity Comm’n v. PVNF, L.L.C., 487 F.3d 790, 798

(10th Cir. 2007) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986));

see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In considering

whether the Officers asserted a claim of a sexually hostile work environment

sufficient to survive summary judgment, we look at “the totality of the

circumstances . . . , which is the touchstone of our analysis” of such claims. 

PVNF, 487 F.3d at 799 (quotation omitted); see also Harris, 510 U.S. at 23;
28

Harsco Corp. v. Renner, 475 F.3d 1179, 1187 (10th Cir. 2007). 

To establish that a sexually hostile work environment existed, a

plaintiff must prove the following elements: (1) she is a member of a

protected group; (2) she was subject to unwelcome harassment; (3) the

harassment was based on sex; and (4) due to the harassment’s severity

or pervasiveness, the harassment altered a term, condition, or privilege

of the plaintiff’s employment and created an abusive working

environment. 

Harsco Corp., 475 F.3d at 1186 (quotation, alteration omitted). Thus, “[t]o

survive summary judgment on a claim alleging a [sexually] hostile work

environment, [the Officers] must show that a rational jury could find that 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,” and that they were

“targeted for harassment” because of their gender. Herrera v. Lufkin Indus., Inc.,

474 F.3d 675, 680 (10th Cir. 2007) (quotation omitted). 

“A plaintiff does not make a showing of a pervasively hostile work

environment by demonstrating a few isolated incidents of [gender-based] enmity

or sporadic [gender-based] slurs. Instead, there must be a steady barrage of

opprobrious [gender-based] comments.” Id. (quotation omitted). In determining

whether the harassment is severe or pervasive, “we 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.” Id. (quotation,

alteration omitted). “The inquiry is particularly unsuited for summary judgment
29

because it is quintessentially a question of fact.” Tademy v. Union Pac. Corp.,

520 F.3d 1149, 1162 (10th Cir. 2008) (quotation omitted). 

Both Voyles and Semsroth allege their work environment was sexually

hostile. 

a. Officer Semsroth

Semsroth alleges that her work environment was sexually hostile and thus

violated Title VII. We must start our analysis by determining which of the

allegations Semsroth asserts in support of this claim we can consider. As noted

above, the continuing violation doctrine remains viable for hostile work

environment claims. The Morgan Court made clear that the scope of actionable

claims depended on “whether the acts about which an employee complains are

part of the same actionable hostile work environment practice.” 536 U.S. at 120. 

To determine whether separate acts are part of the same practice, we look to the

type, frequency, and timing of the acts, as well as to the perpetrator of the acts. 

Duncan v. Manager, Dep’t of Safety, City & County of Denver, 397 F.3d 1300,

1309 (10th Cir. 2005). 

As previously addressed, Semsroth’s actionable allegations include the

following: (i) the Department retaliated against her by transferring her to a beat

assignment with restricted experience and career advancement opportunities; (ii) a

supervising officer told her that other officers referred to her as a “bitch” and then

failed to discipline those officers; (iii) the Department failed to take disciplinary
30

action against an officer who failed to give Semsroth proper backup support

during an emergency call; and (iv) a supervising officer “interrogated” her

regarding a women’s-only luncheon for female police officers. In addition,

however, Semsroth makes several other allegations that are sufficiently related to

these actionable claims that they can be considered part of the same unlawful

employment practice. 

First, Semsroth testified in her deposition that Sergeant Watts admonished

Semsroth to “let [her] hair down and go out and have beers with the guys.” This

allegation is sufficiently related to Semsroth’s actionable claim that Sergeant

Watts, along with Captain Tabor, Lieutenant Hanley, and Sergeant Chambers,

failed to discipline Officer Nixon when he did not provide backup for Semsroth in

October 2003. And it was Sergeant Watts who, along with Lieutenant Hanley and

Sergeant Chambers, was involved in the decision, made soon after October 2003,

to transfer Semsroth to the less desirable Beat 39. 

Second, Semsroth contends that Lieutenant Hanley failed to discipline

Officer Tucker after Tucker, in April 2003, placed a photo of a Department award

in Semsroth’s locker, mocking her for being passed over for such an award. 

Captain Tabor and Sergeant Chambers were also involved in informally

investigating this incident. The failure to discipline Tucker is sufficiently related

to Semsroth’s exhausted allegation that, in October 2003, Hanley, as well as

Watts, failed to discipline officers for calling Semsroth a “bitch.” 
16Semsroth further alleged several other incidents of potentially

sexually-based harassment: (i) Sergeant Kennedy, every time he saw Semsroth,

would call her dumb and blonde, and (ii) Officer Bartel referred to Semsroth as

“hot.” We do not consider these allegations, however, because they are not

sufficiently related to Semsroth’s actionable claims. These two allegations

involve different officers than those involved in the rest of Semsroth’s actionable

allegations. See Duncan, 397 F.3d at 1313. And Semsroth testified in her

deposition that, while she found these comments “annoying” and “inappropriate,”

she did not find them offensive. On the basis of this record, we cannot say that,

even drawing every inference in her favor, a reasonable jury could find that these

comments were part of the same unlawful employment practices that underlie

Semsroth’s actionable allegations of sexual harassment. See Tademy, 520 F.3d at

1160; see also Duncan, 397 F.3d at 1309. 

31

Third, Semsroth alleges that the Department presented awards to male

officers involved in a dangerous call in June 2002, but did not give Semsroth the

same award, despite her also taking part in this call. Semsroth complained about

this unequal treatment to Lieutenant Hanley and Captain Tabor. And it was

Semsroth’s complaints about being passed over for these awards that prompted

Tucker to place the mocking photo in Semsroth’s locker. These allegations are

sufficiently related to Semsroth’s allegations that Hanley failed to discipline

Officer Tucker for using the photo of a Department award to mock her. 

A reasonable jury could find that all three of these additional allegations

were part of the same unlawful employment practice that involved Semsroth’s

other exhausted harassment allegations. See Tademy, 520 F.3d at 1160; see also

Duncan, 397 F.3d at 1309. They are temporally related, and they all involve the

same supervisory officers.16
17On appeal, Semsroth does not appear to dispute that the seven male

officers who first responded to the call received awards because they each came

under direct fire from the suspect, while she did not. 

32

We now turn to the question of whether these actionable incidents of

alleged sexual harassment are sufficient for Semsroth’s hostile environment claim

to survive summary judgment. We conclude they are.

Viewed in context and in the light most favorable to her, Semsroth’s

evidence establishes the following: Semsroth has been a police officer in the

Department since September 2000. In June 2002, she was the only woman among

the eight first responders to answer a call which involved a suspect shooting at

officers. Eventually eighty-six officers responded to this situation. All of the

seven male first responders received a department award, counselling and

administrative leave. Semsroth, the only woman, did not. 

As a result, in April 2003, Semsroth complained to her supervisors about

what she perceived to be the Department’s unequal treatment of male and female

officers. After her complaints, a male officer, Officer Tucker, took photos of the

awards given to the male officers and placed those photos in Semsroth’s locker,

with a note telling her “[C]ut these out and pin them on your uniform as you feel

you deserve, it’s probably the closest you will ever get to the real thing.”17

Semsroth reported this incident to her supervisor, Sergeant Chambers, who, in

turn, reported it to his supervisor, Captain Tabor. Tabor promised Semsroth “that
18Semsroth has proffered evidence that Lieutenant Hanley used the same

term to refer to female officers. Co-defendant Heather Plush heard reports that

Hanley told an entire squad that the women who filed this suit were “bitches”

who “need[ed] to learn to get along.” Plush also heard Hanley refer to a female

officer as “a bitch” at the 2003 Department Christmas party. Although this

evidence does not support a finding that Semsroth experienced a hostile work

environment, because she does not allege that she knew of these comments, see

Tademy, 520 F.3d at 1164, it may support a jury finding that Hanley condoned

the use of the term by other officers or used it himself due to a discriminatory

attitude towards women, c.f. Morgan, 536 U.S. at 113; Davidson v. Am. Online,

Inc., 337 F.3d 1179, 1184 n.2 (10th Cir. 2003). 

33

there would be discipline,” but no one conducted a formal investigation of

Tucker’s actions. Tabor, Hanley and Chambers did make Tucker apologize to

Semsroth. 

In mid-2003, male officers talking to Sergeant Watts and Lieutenant Hanley

referred to Semsroth as a “bitch.” Neither supervisor, however, apparently took

any action against the male officers.18 Instead, Watts and Hanley met with

Semsroth, told her that other officers were calling her a “bitch,” and “verbally

counselled” her on how to handle the situation. Watts advised Semsroth to “let

[her] hair down and go out and have beers with the guys.” 

In October 2003, Semsroth requested backup during a traffic stop. The

dispatcher directed a male officer, Officer Nixon, to provide Semsroth with

backup. Instead of doing so, Nixon argued with Semsroth over the radio on the

need for backup. Nixon never provided Semsroth with backup. When Semsroth

complained to their supervisor, Sergeant Watts, that Nixon’s failure to provide
34

backup had jeopardized her safety, Watts responded that it was “just Nixon being

Nixon.” Watts agreed that Nixon should have provided her backup and said he

would talk to Nixon, but Watts did not want Nixon to take it the wrong way.

A week later, Semsroth attended a women-officers-only lunch. Upon her

return, Semsroth’s supervisors interrogated her about the lunch. 

Still another week later, Sergeant Watts and Lieutenant Hanley transferred

Semsroth to Beat 39. As previously explained, Beat 39 was referred to as the

banishment beat, a beat usually reserved for new officers or those being

disciplined. It was a beat with diminished opportunities for career development. 

Watts and Hanley informed Semsroth that this transfer was “to get [her] kind of

out and away . . . ‘cause [she] was having some turmoil with a couple of male

officers at the time.” None of the male officers involved in this turmoil was

transferred. 

In light of this evidence, we must consider whether Semsroth has

established the necessary elements to recover under her claim that her work

environment was sexually hostile. See Harsco Corp., 475 F.3d at 1186 (listing

elements). Semsroth, as a woman, is a member of a protected class. Her

complaints to her supervisors establish that the harassment she perceived was

unwelcome. 

And, viewing the evidence in the light most favorable to Semsroth, her

male supervisors and co-workers targeted her for harassment because of her
35

gender. “[T]he critical issue in determining whether harassment is because of sex

is whether members of one sex are subjected to a disadvantage to which the other

sex is not.” Id.; see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,

80 (1998). 

Here, the fact that Semsroth has presented evidence indicating that she was

treated differently from similarly situated male officers supports this conclusion. 

See Oncale, 523 U.S. at 80-81. For instance, when there was a personality

conflict between Semsroth and her male co-workers, it was Semsroth and not the

male officers who was transferred to the undesirable Beat 39. 

In addition, evidence that Semsroth’s supervisors used and tolerated the use

of the word “bitch” further suggests that the harassment directed at Semsroth was

based on her gender. “[W]e have characterized th[at] word as a ‘sexual epithet[]’

that courts have described as ‘intensely degrading’” to women. PVNF, 487 F.3d

at 799 (quoting Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1000 (10th Cir.

1996)); see also Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d 1139, 1144

(11th Cir. 2008). When a supervisor “tolerate[s] the use of the word ‘bitch’ to

describe” a plaintiff, “a jury should decide whether these comments were made

because of gender animus.” PVNF, 487 F.3d at 799 (emphasis added); see also

Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999) (“[G]ender-based

insults, including the term ‘bitch,’ may give rise to an inference of discrimination

based on sex.”).
36

Moreover, a supervisor’s use of terms like “bitch” can itself be a form of

differential treatment, particularly when the supervisor uses the term to refer to

many women. See Chavez v. Thomas & Betts Corp, 396 F.3d 1088, 1096 (10th

Cir. 2005) (“[E]vidence supports the reasonable inference that [a supervisor]

treated men and women differently . . . . [The supervisor] regularly directed

sexually charged, humiliating, and hostile comments towards women [and] . . . 

regularly classified women as ‘bitches.’”), overruling on other grounds

recognized in Metzler v. Fed. Home Loan Bank, 464 F.3d 1164, 1171 n.2 (10th

Cir. 2006). 

Even if not all of these incidents of alleged harassment can easily be

categorized as overtly based on gender, some certainly can be. In light of that,

we can consider it more likely that the other actions taken against Semsroth that

are not overtly gender-based may well stem from the same discriminatory

hostility. See Montes, 497 F.3d at 1172; Winsor, 79 F.3d at 1000; see also

Herrera, 474 F.3d at 682 n.7. 

Viewed in the light most favorable to her, Semsroth’s evidence also

establishes that this harassment was sufficiently severe and pervasive that a jury

could find that it altered Semsroth’s employment conditions. In making this

determination, we consider “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.” 
37

Harsco Corp., 475 F.3d at 1187; see also Harris, 510 U.S. at 23.

Much of this conduct occurred during a two-month period from October to

December 2003. See PVNF, 487 F.3d at 799 (concluding evidence established

pervasive harassment when the “bulk of it occurred during a relatively short

period of time—[a] four-month period”). This suggests a pervasive pattern of

harassment. 

Of particular moment in considering the severity of the alleged harassment

was the failure of Semsroth’s supervisors to discipline Officer Nixon for failing to

provide backup for Semsroth. See, e.g., Dawson v. County of Westchester, 373

F.3d 265, 273 (2d Cir. 2004) (holding that the evidence could support the finding

of a pervasively hostile work environment because corrections “officers must

depend upon their co-workers for mutual protection . . . in potentially dangerous

situations [and], [i]n such a setting, actions of co-officers and superiors that

undermine an officer’s sense of personal safety . . . assume greater, not lesser,

significance”); Jemmott v. Coughlin, 85 F.3d 61, 67 (2d Cir. 1996) (evidence

could support the finding of a hostile work environment where coworkers of a

black corrections officer “put him in danger of physical harm [by] refusing to

send requested back-up assistance”); Apgar v. Wyoming, No. 99-8029, 2000 WL

1059444, at *6 (10th Cir. Aug. 2, 2000) (unpublished) (evidence could support

the finding of a pervasively hostile work environment because, “[w]hile we would

have a difficult time characterizing . . . ‘ silent treatment’ as severe and
38

pervasive harassment in an office setting . . . the behavior takes on an entirely

different meaning in the law enforcement context [because] [l]aw enforcement

officers must rely on their fellow officers while on duty”). Nixon’s failure to

provide backup could have put Semsroth in physical danger. And a jury could

find that her supervisor’s failure to address the issue adequately and discipline

Nixon could create a risk that this conduct would be repeated. See Tademy, 520

F.3d at 1167 (holding that past disciplinary failures were related to later racist

incidents because “employees might well . . . conclude[] that they could engage in

such behavior with minimal consequences”). 

Semsroth’s evidence, if believed, is therefore sufficient to establish more

than an isolated or occasional incident of gender-based harassment. Rather, the

evidence indicates a work environment that was permeated with gender-based

intimidation and insult. 

Lastly, Semsroth’s evidence is sufficient for a jury to find the Department

liable for this harassment under Title VII. An employer will be liable “for an

actionable hostile environment created by a supervisor with immediate (or

successively higher) authority over the employee.” Burlington Indus. v. Ellerth,

524 U.S. 742, 765 (1998). Further, the employer may be liable for a sexually

hostile work environment “if the employer fails to take adequate remedial and

preventative responses to any actually or constructively known harassment.” 

Holmes v. Utah, Dep’t of Workforce Servs., 483 F.3d 1057, 1069 (10th Cir. 2007)
39

(citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th Cir. 1998)); see

also PVNF, 487 F.3d at 799 (suggesting employer would be on notice where

plaintiff’s “supervisor knew all about [the challenged] conduct and either chose to

ignore it altogether or respond in only the most minimal of ways (e.g., forcing a

half-hearted apology)”); Winsor, 79 F.3d at 1002 (concluding employer generally

failed to take remedial action where, despite plaintiff’s numerous complaints, her

manager suggested instead that she “grit her teeth and hang in there” because she

was working in a tough business and a lot of her male counterparts were unhappy

with plaintiff’s success). “Actual knowledge is usually demonstrable where,” as

here, the evidence indicates that “the plaintiff has reported harassment to

management-level employees.” Harsco Corp., 475 F.3d at 1188. 

For all of these reasons, we conclude that Officer Semsroth’s hostile work

environment is sufficient to survive summary judgment. “It may be that a jury

would agree with [the Department] that [Semsroth] was not subjected to a severe

or pervasively hostile environment based on her sex, but that is not for this Court

to decide.” PVNF, 487 F.3d at 800. 

b. Officer Voyles

Officer Voyles, too, asserts a hostile work environment claim. We must,

again, determine which of the allegations Voyles asserts in support of this claim

we can consider. As previously addressed, Voyles made two timely and thus

actionable allegations in her EEOC complaint: (i) an allegation regarding a
19In addition, Voyles alleges several other incidents of potentially

sexually-based harassment, including: (i) an allegation that a fellow officer

harassed her during a traffic stop; (ii) an allegation that she received disparate

disciplinary treatment for failing to write a sufficient number of tickets in a given

period; and (iii) an allegation that she received disparate disciplinary treatment

for failing to attend the required number of community meetings. But we do not

address these three additional allegations Voyles makes because they are

unrelated to her two actionable claims.

40

supervisor’s negative and derogatory comments regarding Voyles’s body and

eating habits made while Voyles was pregnant; and (ii) an allegation regarding an

oral reprimand from a supervisor in front of various media personnel. We focus

on those allegations.19 

The evidence, viewed in the light most favorable to Voyles, indicates that,

during her pregnancy, her supervisor, Lieutenant Bohannon, would make

derogatory remarks about Voyles’s weight and her eating habits. Voyles

complained about these remarks to Deputy Chief Stoltz, who responded that

“that’s kind of how [Bohannon] was.” 

Voyles alleged that, during this same time period, Bohannon verbally

reprimanded her in front of the media. In her deposition, however, Voyles instead

testified that Bohannon stated, during a telephone conversation, that Voyles was

being difficult. This conversation occurred in an open room where the media was

gathered for a daily Department briefing. Although Voyles overheard this

remark, she did not know if any members of the media heard it. 

Although we do not engage in a simple counting exercise to determine the
41

pervasiveness of the harassment, Voyles’s claims constitute a few isolated

incidents rather a hostile work environment. Herrera, 474 F.3d at 680 n.3. Her

allegations are not so severe or pervasive that a reasonable jury could find that

they altered the conditions of her employment. See Tademy, 520 F.3d at 1162;

Herrera, 474 F.3d at 680. It is beyond question that these experiences were

unpleasant, and the breadth of the allegations made in this case suggests that the

Department must remain vigilant to ensure discrimination does not take place;

however, given the claims properly before this court, we must conclude that

Voyles did not establish that these interactions created a hostile work

environment that altered her conditions of employment. Accordingly, summary

judgment in the Department’s favor on this claim was proper. 

III.

As a final matter, in their brief, the Officers contend that the district court

improperly excluded their expert report and other summary judgment evidence. 

We review this contention for abuse of discretion, Bryant v. Farmers Ins.

Exchange, 432 F.3d 1114, 1122 (10th Cir. 2005), and we disagree that the district

court erred. The district court excluded summary judgment evidence that violated

the local rules or contained inadmissible content pursuant to the Federal Rules of

Evidence. Accordingly, the district court did not abuse its discretion by

excluding this evidence. Id.; Hernandez v. George, 793 F.2d 264, 266 (10th Cir.

1986).
42

IV.

The Officers’ allegations and summary judgment evidence in this case are

quite troubling. The allegations suggest that sexual discrimination remains a

concern within the Department. Federal law prohibits such discrimination and we

strongly regret the presence of any such misconduct. Nevertheless, in the instant

case, for the most part the Officers fail to demonstrate that discriminatory motives

played a role in the Department’s employment decisions that were properly before

the district court. 

We REVERSE the district court’s decision granting the defendants

summary judgment on Officer Semsroth’s retaliation and hostile-environment

claims and REMAND those two claims for a trial. In all other respects, we

AFFIRM the district court’s decision granting the defendants summary judgment.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge