Full opinion text
MEMORANDUM AND ORDER SAFFELS, District Judge. This matter is before the court on defendants’ Motions for Summary Judgment (Docs.218, 221). For purposes of representation, the defendants are divided into two groups: defendant Robert Maier has submitted his own motion (Doc. 218), and the rest of the defendants, including the City of Newton, Kansas (“City”), and the Board of County Commissioners, Harvey County Kansas (“County”), have filed a separate motion (Doc. 221). Plaintiffs have filed a consolidated response (Doc. 237), and both sets of defendants have filed replies (Docs. 248, 249). The court is now prepared to rule on both motions. • PROCEDURAL HISTORY Plaintiffs filed their complaint in this matter on December 10, 1997. Shortly thereafter, on January 6, 1998, plaintiffs filed an Amended Verified Complaint (Doc. 3). Plaintiffs were subsequently granted leave to file an amended complaint, and on April 10, 1998, plaintiffs filed a Second Amended Verified Complaint (Doc. 26). Defendants then filed motions to strike plaintiffs’ complaint. Hence, on September 1, 1998, defendants’ motions to strike were granted and plaintiffs were given leave to file a third amended complaint. Finally, on September 8, 1998, plaintiffs filed their Third Amended Verified Complaint (Doc. 104). The case has proceeded under this fourth and final complaint. According to an agreement by the parties, on October 10, 1998, the court dismissed with prejudice all professional liability claims brought against defendant Robert Myers. Remaining for resolution are claims brought against Robert Myers in his capacity as City Attorney for the City. Defendant Phil Kloster filed his Notice and Suggestions of Bankruptcy (Doc. 205) with the court on February 10, 2000. Therefore, the case has been stayed pursuant to 11 U.S.C. § 362 as to Phil Kloster. While § 362 extends stay provisions of the Bankruptcy Code to the “debtor,” the rule followed in the Tenth Circuit and by the majority of other circuits is that the stay provision does not extend to the debtor’s co-defendants. See Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1330 (10th Cir.1984). There does exist a narrow exception to this general rule, see A.H. Robins Co. v. Piccinin, 788 F.2d 994, 999 (4th Cir.), cert. denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986), yet none of the defendants have attempted to argue their inclusion within the exception. Therefore, the case continues unimpeded as against the remaining defendants. On February 28, 2000, this court issued an Order (Doc. 206) dismissing RTR Corporation as a party-plaintiff. All claims brought by RTR Corporation have been dismissed with prejudice. • FACTUAL BACKGROUND Plaintiffs Cindy Ratts and J.D. Ratts are husband and wife. This action ostensibly arises from Ms. Ratts’ employment at the Newton City/County Airport (“airport”). Plaintiffs’ claims, which will be discussed in further detail, are generally premised on Ms. Ratts’ alleged suffering of sexual harassment and gender discrimination at the hands of the defendants. The airport is jointly owned by the City and County. It is controverted as to whether both the City and County manage the operations at the airport. It is uncon-troverted, however, that while employed at the airport Ms. Ratts was an employee of the City. Ms. Ratts contends that she was also, for the purposes of her employment related claims, an employee of the County. Ms. Ratts began her employment at the airport on August 10, 1979, as a Line Attendant I. She was hired by then Airport Manager, Jim McFarland. Mr. McFarland was subsequently replaced by defendant Robert Maier in March 1985. Throughout most of Ms. Ratts’ employment, Mr. Maier had full operational control of all activities at the airport and was Ms. Ratts’ supervisor. Phil Kloster began working as City Manager on March 2, 1990. He was later replaced by James Heinieke in the summer of 1997. As Airport Manager, Mr. Maier reported directly to the City Manager. In 1986, Ms. Ratts was promoted to Line Attendant II, and in March of 1987 she was promoted again to Accounting Clerk III/Office Manager. At some point in the late 1980’s, Ms. Ratts and Mr. Maier began having sexual contacts. It is controverted as to whether these contacts were the product of a consensual sexual affair or, as Ms. Ratts alleges in her deposition, the product of Mr. Maier’s intimidation and influence over her. Just as there is no definite starting date in regards to these contacts, the parties are inconsistent as to when they ceased. Apparently, the sexual contacts ended in either 1991 or 1992. From 1991 through 1992, till Ms. Ratts’ eventual transfer from the airport in 1997, very little of the factual record is uncontro-verted. Defendants concede that the atmosphere at the airport was casual and that employees regularly shared stories and jokes of a sexual nature. Ms. Ratts alleges that the atmosphere was full of unwanted and unwelcomed sexual advances on' the part of Mr. Maier. The parties greatly dispute what actually took place between Mr. Maier, Ms. Ratts, and other airport personnel. Additionally, the parties strongly disagree as to the impact various statements, gestures, physical contact, and adult material had on Ms. Ratts’ working environment. Plaintiffs identify numerous instances of allegedly sexually centered behavior observed or rendered upon Ms. Ratts by Messrs. Maier or Kloster. Instead of detailing the supposed record of sexual harassment at this point, the court will address the particulars of these contacts when analyzing the sufficiency of the plaintiffs’ evidence in relation to the defendants’ motions. In January 1996, Ms. Ratts discussed Mr. Maier’s allegedly inappropriate behavior with the City of Newton Fire Chief, Jim Jackson. Mr. Jackson then relayed Ms. Ratts’ concerns to the City Manager, Mr. Kloster. It is uncontroverted that Ms. Ratts approached Mr. Jackson approximately six months prior to the January conversation with her concerns regarding Mr. Maier. The parties disagree, however, as to the full breadth of this earlier meeting. The official investigation of Ms. Ratts’ allegations began when Mr. Jackson contacted Mr. Kloster. It is uncontrovert-ed that the City had no official sexual harassment policy prior to March 1, 1996. On or about January 28, 1996, City Attorney Robert Myers, Mr. Kloster, and Mr. Lon Walker met with Mr. Maier and informed him of the complaint made against him by Ms. Ratts. At that time. Mr. Maier was placed on indefinite suspension and relieved of his duties at the airport. Ultimately, Mr. Maier did not return to the airport — instead he was permanently transferred to a non-supervisory position with the City of Newton Fire Department. Mr. Maier’s transfer represented a demotion in authority and a reduction in salary. After the preliminary investigation was underway by City officials, Ms. Ratts was granted a medical leave and encouraged to seek counseling by Mr. Kloster. Ms. Ratts subsequently returned to work on February 14, 1996. Upon her return, the daily operations of the airport were controlled by Ms. Stephanie Weber. Ms. Weber apparently held the position of Line Attendant I before being placed in charge of the airport’s operations. The record submitted by the parties is quite confusing in regards to who was the ultimate authority at the airport after Mr. Maier was relieved. Defendants submit that Mr. Kloster placed Ron Ashmuhs, the City’s Director of Finance, in charge of the airport at some undisclosed time after Ms. Ratts returned in February. Plaintiffs contend that such an appointment was in title only, and that Ms. Ratts was responsible for the airport’s operations. After Ms. Ratts’ return in February 1996, she called City Attorney, Robert Myers, to complain about the treatment she was receiving from the airport personnel. Specifically, she complained that her co-workers were refusing to speak to her and that “wild rumors” were circulating regarding her claim against Mr. Maier. In response, Messrs. Myers and Kloster went to the airport and discussed the situation with the employees. The parties strongly dispute what was said at this meeting. Plaintiffs contend that airport personnel were instructed not to speak to Ms. Ratts regarding her claims of sexual harassment by Mr. Maier. According to the defendants, all of Ms. Ratts’ allegations of mistreatment were investigated and shown to be unsubstantiated. Plaintiffs disagree with defendants’ assertion. On May 19,1997, Ms. Ratts was relieved of her duties at the airport and transferred to the Newton Public Library. It is highly contested whether such a move was a lateral transfer, as the defendants contend, or rather a demotion, as plaintiffs argue. It is uncontroverted, however, that Ms. Ratts did not request to be relocated to the library. The parties dispute whether Ms. Ratts’ transfer was temporary or permanent. • STATUTORY REQUIREMENTS On October 18, 1996, Ms. Ratts filed her original charge regarding employment discrimination/employment disability discrimination/sexual harassment/retaliation jointly with the Kansas Human Rights Commission (“KHRC”) and the Equal Employment Opportunity Commission (“EEOC”). An amended charge was filed with both organizations on July 7, 1997. On September 29, 1997, Ms. Ratts received her right to sue letter from the EEOC. • PLAINTIFFS’ CLAIMS Plaintiffs bring numerous federal and state law claims against the defendants. As for the federal claims, Ms. Ratts asserts: (1) claims against the City and County pursuant to 42 U.S.C. §§ 2000e et seq. (“Title VII”) and the Kansas Act Against Discrimination (“KAAD”) for sexual harassment; (2) claims against the City and County pursuant to Title VII and the KAAD for retaliation; (8) claims against the City and County pursuant to Title VII and the KAAD for gender discrimination; (4) claims against all of the defendants pursuant to 42 U.S.C. § 1983; (5) claims against the City and County pursuant to Title I of the Americans with Disabilities Act of 1964, 42 U.S.C. § 12101 et seq. (“ADA”) and the KAAD. As for the state law claims, Ms. Ratts asserts: (1) claims against the City and County for negligence; (2) claims against all of the defendants for invasion of privacy, false light, and breach of confidentiality; (3) claims against all of the defendants for loss of consortium; (4) claims against all of the defendants for tortious interference with prospective business relations; (5) claims against all of the defendants for conspiracy to interfere with livelihood; (6) claims against all of the defendants for intentional infliction of emotional distress. Mr. Ratts joins his wife in the assertion of her state law claims for: (1) loss of consortium; (2) intentional infliction of emotional distress; and (3) invasion of privacy. The defendants collectively seek summary judgment on all of the plaintiff’s claims. • STANDARD OF REVIEW Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 66(c). The rule provides that “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The substantive law identifies which facts are material. Id. at 248, 106 S.Ct. 2505. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1036 (10th Cir.1993). The movant may discharge its burden “by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant need not negate the nonmovant’s claim. Id. at 323, 106 S.Ct. 2548. Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmovant must go beyond the pleadings and, by affidavits or depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (interpreting Fed.R.Civ.P. 56(e)). Rule 56(c) requires the court to enter summary judgment against a nonmovant who fails to make a showing sufficient to establish the existence of an essential element to that party’s case, and on which that party will bear the burden of proof. Id. at 322, 106 S.Ct. 2548. Such a complete failure of proof on an essential element of the non-movant’s case renders all other facts immaterial. Id. at 323, 106 S.Ct. 2548. A court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. See, e.g., United States v. O’Block, 788 F.2d 1433, 1435 (10th Cir.1986) (“The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues.”). The court’s function is not to weigh the evidence, but merely to determine whether there is sufficient evidence favoring the nonmovant for a finder of fact to return a verdict in that party’s favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Essentially, the court performs the threshold inquiry of determining whether a trial is necessary. Id. at 250, 106 S.Ct. 2505. • DISCUSSION • Federal Claims • Kansas Act Against Discrimination Claims Defendants move for summary judgment on plaintiffs’ KAAD claims on the grounds that plaintiffs failed to exhaust their administrative remedies. While plaintiffs dual filed with the EEOC and the KHRC on October 18, 1996, plaintiffs only assert that they received a right to sue letter from the EEOC. A plaintiff may not rely on an EEOC notice as proof of his exhaustion of remedies under state law. See Daneshvar v. Graphic Tech., Inc., 18 F.Supp.2d 1277, 1285 (D.Kan.1998) (granting summary judgment on a plaintiffs KAAD claims when he dual filed but failed to receive a notice of right to sue from the KHRC). Accordingly, the court must grant summary judgment for all of plaintiffs’ KAAD claims as to all defendants. • Title VII Claims • Proper Parties Ms. Ratts brings her Title VII claims against both the City and County. As a preliminary jurisdictional issue, Ms. Ratts must establish that both entities fall within the statutory definition of “employer” provided in 42 U.S.C. § 2000e(b). See Zinn v. McKune, 143 F.3d 1353, 1356-57 (10th Cir.1998). Both parties submit that Ms. Ratts has satisfied this requirement as to the City. The issue remains whether Ms. Ratts was also an employee of the County. Acknowledging the circular nature of the definitions employed by Title VII, the Tenth Circuit has held that the definitions “should be fleshed out by applying the common-law agency principles to the facts and circumstances surrounding the working relationship of the parties.” Id. at 1357 (citing Lambertsen v. Utah Dept. of Corrections, 79 F.3d 1024, 1028 (10th Cir.1996)). Therefore, the main focus of this analysis is whether and to what extent the County had the “right to control the ‘means and manner’ ” of Ms. Ratts’ performance. Id. (internal citation and quotation marks omitted). This inquiry also requires the court to consider the following factors: (1) the kind of occupation at issue, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the employer or the employee furnishes the equipment used and the place of work; (4) the length of time the individual has worked; (5) the method of payment, whether by time or by job; (6) the manner in which the work relationship is terminated; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the employer; (9) whether the worker accumulates retirement benefits; (10) whether the employer pays social security taxes; and (11) the intention of the parties. Lambertsen, 79 F.3d at 1028. The court must look to the totality of the circumstances: no one factor is determinative. See id. Ms. Ratts submits that she was an employee of the County primarily because (1) the City and County jointly own the airport; (2) management of the airport is subject to the joint policies of the City and County; (3) the Aviation Commission is comprised of members representing the City and County; and (4) the City must consult with the County Administrator pri- or to appointing or terminating an airport manager, preparing an annual budget for the airport, preparing any capital improvements, and making applications for any federal funding. Ms. Ratts’ argument is heavily founded on the County’s equal ownership of the airport. She has presented no evidence regarding how the County affected the daily manner of her work performance. In fact, the evidence offered by plaintiffs seems to belie Ms. Ratts’ position, for a contract entered into by the City and the County specifically indicates that the City will be responsible for the active management of the airport. (Pis/ Ex. 15). Therefore, Ms. Ratts is attempting to impose employer liability upon the County merely because it is a part-owner of the airport. However, this assertion misinterprets the point and focus of the “means and manner” test. See Zinn, 148 F.3d at 1357-59 (finding a nurse employed by a private corporation but physically working within a state owned prison was not an employee of the state even though the state placed some restrictions on her activities within the prison). No evidence has been presented that would establish the requisite degree of control over Ms. Ratts’ working performance. Therefore, Ms. Ratts has failed to provide sufficient evidence indicating that the County was her employer. Summary judgment is appropriate for the County on the Title VII claims. ® Sexual Harassment • Statute of Limitations The City asserts that most of the incidents supporting Ms. Ratts’ Title VII sexual harassment claim are time-barred. According to 42 U.S.C. § 2000e-5(e), a charge of discrimination must be filed with the EEOC within 300 days of the alleged unlawful act. This filing is a prerequisite to bringing a Title VII claim. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). Ms. Ratts filed her original charge of discrimination with the EEOC on October 18, 1996. She admits that a substantial number of the alleged acts of harassment occurred outside the time limit imposed by Title VII. However, she also asserts that several acts occurred within the time period. Ms. Ratts urges the court to apply the continuing course of conduct doctrine to her claim. Under this doctrine, a plaintiffs claim may include incidents of unlawful acts outside the time period if the various acts represent a “continuing pattern of discrimination.” Furr v. AT&T Techs., Inc., 824 F.2d 1537, 1543 (10th Cir.1987). The doctrine has been extended to Title VII claims. See Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 984 (10th Cir.1991), disapproved of on other grounds by Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1228 (10th Cir.2000). For the doctrine to apply, Ms. Ratts must first demonstrate at least one incident of harassment, which occurred within the statutory period, i.e., within the 300 days preceding October 18, 1996. See Martin v. Nannie & The Newborns, Inc., 3 F.3d 1410, 1415 (10th Cir.1993). Second, Ms. Ratts must establish that the acts falling outside the time period are part of a continuing practice of harassment, which includes acts within the time period. See id. To determine the applicability of this doctrine, the court now turns to Ms. Ratts’ allegations of sexual harassment. Ms. Ratts alleges that the following acts of harassment occurred during her employment with the City: • In 1987 and 1989, three instances of nonconsensual sexual contact occurred between Ms. Ratts and Mr. Maier; • On August 31, 1994, Mr. Maier exposed his genitalia to Ms. Ratts; • On September 1, 1994, Mr. Maier asked to put City pins on Ms. Ratts’ breasts so he could read from “one tit to the other;” • On September 15, 1994, Mr. Maier informed Ms. Ratts that he was ill due to lack of sexual intercourse; • In the fall of 1994, Mr. Maier informed Ms. Ratts that he thought of her while masturbating; • On March 13, 1995, Mr. Maier intentionally placed his aroused groin against Ms. Ratts; • On March 13, 1995, Mr. Maier informed Ms. Ratts that she should wear shorter dresses so she could bend over and pick things oft' the floor; • On March 13, 1995, Mr. Maier informed Ms. Ratts of his intent to rape her; • On April 4, 1995, Mr. Maier made a comment regarding his “heat seeking moisture missile;” • On April 4, 1995, Mr. Maier restrained Ms. Ratts by the arm and placed his mouth near her breast and simulated nursing; • On May 3, 1995, Mr. Maier, while “looking Ms. Ratts up and down,” stated he wanted a “million bucks to retire or excellent fringe benefits to stay;” • At undisclosed times throughout her employment, Mr. Maier would store pornographic magazines at his workstation; • In November 1995, Mr. Maier invited Ms. Ratts to view a training tape, when in reality Ms. Ratts viewed a portion of a pornographic video depicting sex acts; • On November 27, 1995, Mr. Maier informed Ms. Ratts that he wanted to find her “go button;” • Twice in November and December 1995, Mr. Maier told Ms. Ratts of his intent to rape her; • Throughout November and December 1995, Mr. Maier intentionally placed his aroused groin against Ms. Ratts; • On more than one occasion during October, November, and December 1995, Mr. Maier choked Ms. Ratts when he caught her attempting to document his harassment on her computer; • On December 27, 1995, Mr. Maier informed Ms. Ratts that he hoped to “find her little box under the Christmas tree;” • On or about January 1, 1996, Mr. Mai-er rubbed his groin to the point of arousal in front of Ms. Ratts. After considering these allegations, the court finds that allegations fifteen through nineteen occurred within the appropriate time period. Therefore, the court finds that Ms. Ratts has satisfied the first requirement for employing the continuing course of conduct doctrine by demonstrating at least one act of harassment within the statutory period. To determine whether the second step has been satisfied, i.e., whether the alleged acts of harassment amount to a discriminatory practice, the Tenth Circuit has adopted the approach taken by the Fifth Circuit in Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971, 981 (5th Cir.1983). See Martin, 3 F.3d at 1415. This approach requires the court to consider several nonexclusive factors relevant to the continuing course of conduct question. The first factor is subject matter. Do the alleged violations constitute the same type of discrimination? The second factor is frequency. Were the alleged violations isolated and infrequent or recurring? The third factor is permanence. Was the nature of the alleged violations such that it should trigger an employee’s awareness of the need to assert her rights and would the consequences of the act continue in the absence of a continuing intent to discriminate? See id. The City argues Ms. Ratts fails to satisfy this three pronged analysis. As for the first factor, the court finds that the majority of Ms. Ratts’ submitted violations concern the same subject matter, i.e., sexual misbehavior committed by Mr. Maier. However, as to the second factor, frequency, the court finds a significant time break separates the allegations of sexual contact in 1987 and 1989 as compared to the eighteen other alleged incidents. A five or seven year hiatus of activity is difficult to assimilate within a definition of frequent. The City strongly contests the third and final factor of permanence. Of the numerous violations Ms. Ratts alleges, the most egregious concern her allegedly noncon-sensual sexual contacts with Mr. Maier. She indicates three specific instances of rape. She alleges two acts of nonconsen-sual sexual intercourse occurred in 1987, and she further alleges one act of noncon-sensual oral sex occurred in 1989. However, Ms. Ratts waited until 1996 to file her charge with the EEOC. The City asserts that nonconsensual sexual activity should have alerted Ms. Ratts that her rights were being violated and prompted her to file a contemporaneous charge. As to this issue, the Tenth Circuit has stated: The continuing violation doctrine is premised on the equitable notion that the statute of limitations should not begin to run until a reasonable person would be aware that his or her rights have been violated. The permanence prong of the Berry test limits the reach of the continuing violation theory by restricting its operation to those situations underscored by its equitable foundation. That is, if an event or series of events should have alerted a person to act to assert his or her rights at the time of the violation, the victim cannot later rely on the continuing violation doctrine to overcome the statutory requirement of filing a charge with the EEOC with respect to that event or series of events. Martin, 3 F.3d at 1415, n. 6 (internal citations omitted). The Tenth Circuit, however, examines all three factors in the totality. For example, in Martin, the court found that the plaintiff provided sufficient evidence to demonstrate a genuine issue of material fact concerning the existence of a continuing violation notwithstanding that the plaintiff allowed sexual harassment, including an incident of rape, to continue for an extended period of time before she filed a charge with the EEOC. See id. at 1416. The Martin court submitted that “[c]ertainly, some of the events, including the rape, should have been reported at the time they occurred .... However, given the analysis under the first two factors, we believe that Martin has shown enough to avoid summary judgment on the statute of limitations issue.” Id. It appears, therefore, that if a plaintiff can successfully demonstrate the first two factors of the Martin test (subject matter and frequency), then a lesser showing in the third factor will not be fatal to the application of the continuing course of conduct doctrine. The facts of the present case, however, do not illustrate this situation. Although Ms. Ratts satisfies the first factor, her showing as to frequency is insufficient considering the five to seven year gap in alleged incidents. The court is not compelled to invoke an essentially equitable doctrine to assist a plaintiff who had notice that her rights were being violated yet, for whatever reason, waited years to take action. See, e.g., Holmes v. Regents of the Univ. of Colorado, 176 F.3d 488 (10th Cir.1999) (table) (denying the continuing violation doctrine to a Title VII plaintiff in part “because her claims fail[ed] both the frequency and permanence prongs”). The court, however, does find sufficient grounds to apply the continuing course of conduct doctrine in a limited fashion. The significant time-break between the alleged acts of nonconsensual sexual contact in the late 1980’s and the remaining incidents of harassment is significant. Although the court finds that attempting to extend the continuing course of conduct doctrine to include the alleged rapes is ill-advised under Martin, the court does find that applying the doctrine to the remaining incidents is appropriate in this case. The above incidents numbered two through nineteen all involve the same subject matter, they occur frequently and without interruption over three years, and no single incident is so overwhelmingly egregious as to presume notice on the part of Ms. Ratts. Therefore, the court will apply the doctrine to this case, but the court will only consider the incidents alleged to have occurred in 1994, 1995, and 1996 in determining whether the alleged incidents are sufficient to establish a claim for sexual harassment. See Martin, 3 F.3d at 1416. • Distinction of Claims Plaintiffs’ complaint asserts two seemingly independent theories of sexual harassment pursuant to Title VII: quid pro quo and hostile work environment. However, in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) the Supreme Court de-emphasized these traditional distinctions. See Ellerth, 524 U.S. at 753, 118 S.Ct. 2257 (holding the distinction is only significant relative to the threshold question of whether actionable conduct occurred). While a hostile environment claim may proceed upon evidence of threatened (constructive) job detriment, a quid pro quo claim may only be supported by evidence that actual tangible employment action was suffered by the plaintiff. See id. See also Curry v. District of Columbia, 195 F.3d 654, 659 (D.C.Cir.1999) (noting that quid pro quo harassment constitutes an explicit alteration of the terms or conditions of employment, whereas a hostile working environment constitutes a constructive alteration of the terms or conditions of employment). In other words, the question of tangible employment action operates as the initial “fork” in the sexual harassment road. If the plaintiff did not suffer any employment detriment, then the plaintiffs claim is generally reviewed under the traditional hostile environment analysis. If action was taken, then the analysis shifts to the quid pro quo side. For the sake of clarity to the parties, the court will retain their use of the traditional nomenclature. (1). Quid Pro Quo A plaintiff can demonstrate she was subjected to actionable harassment by establishing “that a tangible employment action resulted from [her] refusal to submit to a supervisor’s sexual demands.” Ellerth, 524 U.S. at 753, 118 S.Ct. 2257. The defendant-employer may refute such a claim by proving that no negative action befell the plaintiff. See Smith v. Cash land, Inc., 193 F.3d 1158, 1160 (10th Cir.1999). In her deposition, Ms. Ratts testifies that she felt pressure to “go along with the sexual harassment” or her job evaluations would be marked down. (Cindy Ratts Dep. at 153). She also indicates that she feared losing her job if she refused Mr. Maier’s requests for sexual contact. (Cindy Ratts Dep. at 86). However, Ms. Ratts presents no evidence that any of her fears were realized. In fact, the record indicates that Mr. Maier helped increase Ms. Ratts’ salary while at the same time allegedly pressuring her for sexual contact. Ms. Ratts argues that she suffered the job detriment of mental anguish due to Mr. Maier’s harassment, yet this type of “detriment” is outside the interpretation espoused by the Supreme Court. See Faragher, 524 U.S. at 808, 118 S.Ct. 2275 (“a tangible employment action, such as discharge, demotion, or undesirable reassignment”). Although Ms. Ratts was eventually transferred from her position at the airport, Ms. Ratts does not argue that this transfer was the product of her refusal to acquiesce to Mr. Maier’s advances. In light of Ms. Ratts’ failure to produce evidence demonstrating an actual tangible employment action, the court finds summary judgment appropriate for this claim. (2). Hostile Work Environment Ms. Ratts can also establish actionable sexual harassment under Title VII if she demonstrates she was subjected to a hostile work environment so severe or pervasive that it constructively altered the terms or conditions of her employment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 20, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); Penry v. Federal Home Loan Bank, 155 F.3d 1257, 1261 (10th Cir.1998) (quoting Davis v. United States Postal Serv., 142 F.3d 1334, 1341 (10th Cir.1998)). “While the plaintiff must make a showing that the environment was both objectively and subjectively hostile, she need not demonstrate psychological harm, nor is she required to show her work suffered as a result of the harassment.” Penny, 155 F.3d at 1261 (citing Davis, 142 F.3d at 1341). Title VII, however, does not provide redress for a working environment “merely tinged with offensive sexual connotations.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). The court is charged with the duty of filtering “out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” Faragher, 524 U.S. at 788, 118 S.Ct. 2275. Within the context of motions for summary judgment, the Tenth Circuit has cautioned courts that “the existence of sexual harassment must be determined ‘in light of the record as a whole,’ and the trier of fact must examine the totality of the circumstances, including ‘the context in which the alleged incidents occurred.’ ” Penry, 155 F.3d at 1262 (quoting Meritor, 477 U.S. at 69, 106 S.Ct. 2399). Finally, a plaintiff must produce evidence that she was the object of harassment because of her gender. Conduct that is overtly sexual may be presumed to be motivated by a gender animus. See id. at 1261. With this standard in mind, the court now returns to Ms. Ratts’ alleged acts of harassment. See infra at 1313-16 (listing Ms. Ratts’ allegations of harassment). The City contends that Ms. Ratts did not subjectively find the alleged acts to be offensive. “Judged in the context of an atmosphere where the employees tolerated sexual jokes and comments, supplied their co-workers with pornography and engaged in consensual sexual conduct, plaintiffs complaints of harassment are ill-founded. Plaintiff voluntarily engaged in the very conduct she now alleges was inappropriate and actionable.” (Defs.’ Mem. at 41). The court disagrees with the City’s reasoning. In Meritor, the Supreme Court noted: But the fact that sex-related conduct was “voluntary,” in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were “unwelcome.” While the question of whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the “voluntariness” of respondent’s participation in the claimed sexual episodes. 477 U.S. at 68, 106 S.Ct. 2399 (internal citation omitted). Ms. Ratts testified throughout her deposition that Mr. Maier’s sexual advances and sexually explicit behavior were unwelcomed. She testified that she personally did not participate in sexually explicit conversations with Mr. Maier. (Cindy Ratts Dep. at 723). Additionally, the record indicates that Ms. Ratts would make remarks or complaints in regards to some of the sexually explicit comments made by Mr. Maier and other airport personnel. (Robert Maier Dep. at 38-40). Finally, Ms. Ratts testified that she told Mr. Maier that the pornography at the workplace was inappropriate. (Cindy Ratts Dep. at 381). When viewed in the light most favorable to Ms. Ratts, the court finds that Ms. Ratts has produced sufficient evidence demonstrating her subjective disdain for the alleged conduct. The City does not dispute that the alleged conduct would be objectively offensive. The court also finds that Ms. Ratts has presented sufficient evidence demonstrating that the alleged harassment was both severe and pervasive enough to represent a hostile environment. When viewed in the light most favorable to Ms. Ratts, the conduct of Mr. Maier created an environment sexually charged beyond the mere trappings of an ordinary workplace. See Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir.1998) (harassing conduct by two male customers of waitress in restaurant was severe enough to create hostile work environment where men commented on her perfume, grabbed her by the hair and one of them grabbed her breast and placed his mouth on it); Dunegan v. City of Council Grove, 77 F.Supp.2d 1192, 1198 (D.Kan.1999) (denying summary judgment when evidence demonstrated a single incident in which a male supervisor hugged a female from behind while grabbing her breast and kissing her neck). The court, therefore, finds summary judgment inappropriate on this issue. The court now turns to the issue of employer liability. It is at this point that the true impact of Ellerth and Faragher is felt. In Faragher, the Court held the following: An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages.... The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. 524 U.S. at 807, 118 S.Ct. 2275. Because the court has already determined that Ms. Ratts did not suffer tangible employment action (and in doing so determined she had no claim for quid pro quo harassment), the City may assert its affirmative defense. The court’s inquiry into the defense is premised on the reasonableness of both parties’ actions. First, did the City exercise reasonable care to prevent and correct any sexually harassing behavior? In Faragher, the defendant city had a sexual harassment policy in place, yet the defendant failed to properly disseminate the policy among its employees. The Supreme Court found that “[ujnder such circumstances, we hold as a matter of law, that the City could not be found to have exercised reasonable care to prevent the supervisors’ harassing conduct.” Id. at 808, 118 S.Ct. 2275. The Court further stated: Unlike the employer of a small work force, who might expect that sufficient care to prevent tortious behavior could be exercised informally, those responsible for city operations could not reasonably have thought that precautions against hostile environments in any one of many departments in far-flung locations could be effective without communicating some formal policy against harassment, with a sensible complaint procedure. Id. at 808-09, 118 S.Ct. 2275. In the present case, the City failed to even create, let alone disseminate, an official sexual harassment policy until 1996. Considering that Ms. Ratts had no policy to rely upon or procedure for lodging complaints, the court finds that Ms. Ratts has raised a disputed issue of material fact as to whether the City took reasonable care to prevent and correct sexually harassing behavior in this case. Because the City fails to sufficiently establish the first element of its defense, there is no need to analyze the reasonableness of Ms. Ratts’ actions. Even with the use of its defense, the City is not entitled to judgment as a matter of law, so the court must deny summary judgment on Ms. Ratts’ Title VII sexual harassment-hostile work environment claim. • Gender Discrimination Ms. Ratts next asserts a disparate treatment claim against the City. “ ‘Because disparate treatment is a form of intentional discrimination, the plaintiff must prove that her employer acted with a discriminatory intent or motive.’ ” Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1315 (10th Cir.1999) (quoting Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1424 (10th Cir.1993)). The now familiar burden-shifting paradigm established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) controls the court’s analysis. See Bullington, 186 F.3d at 1315. Under McDonnell Douglas, the plaintiff must first present a prima facie case of discrimination. Then, the burden of production shifts on the defendant to produce a legitimate, non-discriminatory justification for taking the action in question. Finally, the burden is redirected at the plaintiff to show the defendant’s reason for its actions was merely a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 802-05, 93 S.Ct. 1817. Ms. Ratts’ claims of gender discrimination consist of two allegations. First, she asserts that because she is female she was passed over for the Airport Manager position. Second, she alleges that her transfer to the library was gender biased. • Failure to Hire To establish a prima facie case of gender discrimination in a failure to hire context, Ms. Ratts must demonstrate: (1) she is a member of a protected class; (2) she applied for and was qualified for the Airport Manager position; (3) she was rejected despite her qualifications; and (4) the position was filled by a male applicant. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254 & n. 6, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Sanchez v. Philip Morris, Inc., 992 F.2d 244, 245 (10th Cir.1993). The first and third elements are conceded, and the record reflects that a Mr. Mason Short was hired for the position. Therefore, only the issue of Ms. Ratts’ qualifications is contested. The Tenth Circuit has clearly identified the scope of this determination: At the prima facie stage, the court need only conclude that the plaintiff has shown through credible evidence, including her own testimony, that she was minimally qualified for the position she sought, even if the defendant disputes that evidence.... We will not allow [the defendant] to “short circuit” the McDonnell Douglas analysis by challenging [plaintiffs] qualifications at the prima facie stage. Bullington, 186 F.3d at 1316, n. 11. According to the affidavit submitted by Ms. Ratts, her qualifications included over ten years administrative experience, including an alleged fourteen month stint as acting Airport Manager. The decision on who to replace Mr. Maier was ultimately made by the then acting City Manager, James Heinicke. In his deposition, Mr. Heinicke admits that Ms. Ratts “probably met the minimum qualifications.” (James Heinicke Dep. at 57). Considering this evidence, the court finds that Ms. Ratts has sufficiently demonstrated her qualifications, and so, Ms. Ratts has met her burden of producing a prima facie case. The City submits that Ms. Ratts’ gender played no role in the decision not to hire her. Instead, Mr. Short was selected because of his superior qualifications. This proffered reason is sufficient to shift the burden back to Ms. Ratts. To establish pretext, Ms. Ratts must show either that “ ‘a discriminatory reason more likely motivated the employer or ... that the employer’s proffered explanation is unworthy of credence.’” Bullington, 186 F.3d at 1317 (quoting Burdine, 450 U.S. at 256, 101 S.Ct. 1089) (alteration in original). Ms. Ratts may accomplish this by demonstrating “ ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.’ ” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997) (quoting Olson v. General Elec. Astrospace, 101 F.3d 947, 951-52 (3d Cir.1996)) (further internal citation omitted). Ms. Ratts relies on her “ample” qualifications as proof that the City’s proffered reason is pretextual. However, simply comparing her qualifications with the successful candidate is problematic, for an employer does not violate Title VII by choosing among qualified candidates, so long as the decision is not based on unlawful criteria. See Burdine, 450 U.S. at 259, 101 S.Ct. 1089. Additionally, without evidence that one candidate is overwhelmingly better qualified, pretext cannot be demonstrated by simply showing that the employer picked one candidate from a pool of equally qualified candidates. See, e.g., Fallis v. Kerr-McGee Corp., 944 F.2d 743, 747 (10th Cir.1991) (holding that mere disagreement with employer’s evaluation of which geologists were best qualified, standing alone, could not support a finding of pretext); Branson v.. Price River Coal Co., 853 F.2d 768, 772 (10th Cir.1988) (“As courts are not free to second-guess an employer’s business judgment, this assertion [that plaintiff was equally or more qualified] is insufficient to support a finding of pretext.”). Therefore, Ms. Ratts’ assertion that she was qualified for the position does not establish pretext. The court has considered Ms. Ratts’ other arguments regarding pretext and finds them lacking in merit, so the court finds that Ms. Ratts has failed to satisfy her burden under McDonnell Douglas. Therefore, summary judgment is appropriate on this issue. • Transfer to the Library Ms. Ratts is alleging that her transfer to the library represents unequal treatment based on her gender. To establish a prima facie case of disparate treatment in this context, Ms. Ratts must show: (1) she is a member of the class protected by the statute; (2) she suffered an adverse employment action; and (3) she was treated less favorably than others not in the protected class. See Trujillo v. University of Colorado Health Sciences Ctr., 157 F.3d 1211, 1215 (10th Cir.1998). The first element is conceded. As for the second element, the City contends that Ms. Ratts’ transfer to the library was not an adverse action because it represented a lateral move within the City’s organization. In particular, the City notes that Ms. Ratts’ salary was not affected by her transfer. The City’s reliance on salary as the linchpin in determining what constitutes an adverse action is misplaced. See Gunnell v. Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir.1998) (acknowledging that the Tenth Circuit liberally construes the phrase “adverse employment action”). The Tenth Circuit has opted for a “case-by-case approach” in determining what constitutes adverse action. See Jeffries v. Kansas, 147 F.3d 1220, 1232 (10th Cir.1998). While a “mere inconvenience or an alteration of job responsibilities” does not rise to the level of adverse action, Sanchez v. Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir.1998), reassignment with a significant change in responsibilities may meet the threshold. See Ellerth, 524 U.S. at 761, 118 S.Ct. 2257. Because the transfer to the library radically altered Ms. Ratts’ duties, i.e., administration and clerical work to manually shelving books, the court finds that the transfer was not an innocuous lateral transfer. This finding is also supported by the drop in prestige Ms. Ratts alleges was associated with her work as a book shelver. Ms. Ratts, therefore, has satisfied the second element of her prima facie case. The court now turns to the final element of Ms. Ratts’ prima facie case. To demonstrate that she was treated differently then her male counterparts, Ms. Ratts compares the treatment she received versus the treatment of Mr. Maier. In particular, Ms. Ratts alleges Mr. Maier was given his choice of positions when forced to transfer away from the airport, while Ms. Ratts was given no such opportunity. This disparity, she claims, was the product of gender discrimination. However, Ms. Ratts fails to sufficiently show how Mr. Maier and herself were similarly situated. Mr. Maier was in fact Ms. Ratts’ supervisor, clearly they did not share a common position within the City. Comparing how an employer handled the transfer of a supervisor versus how the same employer handled the transfer of a subordinate obviates the “similarly situated” element embodied in the concept of disparate treatment. See generally Aramburu v. Boeing Co., 112 F.3d 1398, 1403 (10th Cir.1997). Ms. Ratts has, therefore, failed to sufficiently establish the third element of her prima facie case, so the court finds summary judgment appropriate for this claim. • Retaliation Title VII makes it unlawful to retaliate against an employee for participating in certain protected activity. See 42 U.S.C. § 2000e-3(a). Once again, the McDonnell Douglas framework guides the court’s analysis. See McGarry v. Board of County Comm’rs, 175 F.3d 1193, 1201 (10th Cir.1999). To establish a prima facie case of retaliation, Ms. Ratts must demonstrate that: (1) she engaged in protected opposition to discrimination; (2) she was subjected to adverse employment action; and (3) a causal connection existed between the protected activity and the adverse employment action. See id. (citing Griffith v. Colorado, 17 F.3d 1323 (10th Cir.1994)). It is uncontested that Ms. Ratts’ filing with the EEOC satisfies the first element. As for the second element, Ms. Ratts alleges six adverse actions were taken against her in retaliation: (1) she was transferred to the library; (2) the City refused to hire her for the Airport Manager position; (3) she received negative treatment by her co-workers; (4) she felt pressure to resign; (5) the City denied her a clothing allowance; and (6) the City denied her opportunities to interview for other employment. The court has already considered Ms. Ratts’ transfer and found it to be an adverse employment action. It is also well settled that a failure to promote constitutes an adverse employment action in a Title VII retaliation claim. See, e.g., Ellerth, 524 U.S. at 761, 118 S.Ct. 2257 (listing failure to promote as a tangible employment action). Co-worker retaliation presents an interesting question, for Title VII is designed only to implicate an employer’s intentional discrimination. The court must undertake a two-step analysis. First, the court must determine if the alleged acts are sufficiently severe to amount to adverse employment action. See Gunnell, 152 F.3d at 1265. If the acts are sufficiently severe, the court will then consider the employer’s liability. See id. (“[A]n employer can only be liable for co-workers’ retaliatory harassment where its supervisory or management personnel either (1) orchestrate the harassment or (2) know about the harassment and acquiesce in it in such a manner as to condone and encourage the co-workers’ actions.”). The City admits that its management issued a “gag order,” which forbade airport personnel from discussing the complaint filed against Mr. Maier by Ms. Ratts. Ms. Ratts contends that her co-workers became unresponsive to her regarding all matters, not just the complaint. Additionally, she alleges that several of her coworkers began to “spy” on her. After viewing the evidence in the light most favorable to Ms. Ratts, the court concludes that these actions are not sufficiently severe to constitute adverse employment action for the purposes of the retaliation claim. See id. With this finding established, there is no need to consider the City’s liability. The court has also considered Ms. Ratts’ fourth, fifth, and sixth instances of alleged adverse action. After proper review, the court finds that they too are insufficiently severe to constitute adverse employment action. Therefore, as the court turns to the third element of the prima facie case, causation, only Ms. Ratts’ transfer and denial of promotion will be considered as adverse employment action. A causal connection may be shown by producing “evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.” Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.1982). See also Candelaria v. EG & G Energy Measurements, Inc., 33 F.3d 1259, 1261-62 (10th Cir.1994). The burden is to produce evidence demonstrating that the employer took the adverse action in an effort to retaliate. See Bullington, 186 F.3d at 1320-21 (citing Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir.1997) (“[T]he adverse action must have been taken for the purpose of retaliating.”)). While plaintiffs routinely offer temporal proximity as evidence of retaliation, this avenue is by no means the exclusive option when attempting to show a retaliatory motive. See, e.g., Kneibert v. Thomson Newspapers, Michigan, Inc., 129 F.3d 444, 455-56 (8th Cir.1997) (concluding plaintiff presented genuine issue of material fact where statements by employee involved in decision-making process revealed retaliatory motive). Ms. Ratts filed her charge with the EEOC on October 18, 1996. She was transferred to the library on May 19, 1997, so a time-span of approximately seven months separated the two events. Although the record is unclear as to the exact date Ms. Ratts was denied the job of Airport Manager, the parties make clear that this event occurred after Ms. Ratts’ transfer. Hence, the court considers the seven month span to be the most accurate description of the temporal proximity between Ms. Ratts’ protected conduct and adverse employment action. Such a length of time is insufficient, standing alone, to establish an inference of causation. Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir.1997) (“the four month time lag between [plaintiffs] participation in protected activity and his termination by itself would not be sufficient to justify an inference of causation”). See also Richmond v. ONEOK Inc., 120 F.3d 205, 209 (10th Cir.1997) (holding that a three month period is insufficient, by itself, to establish causation). Cf. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1234 (10th Cir.2000) (holding plaintiff failed to establish a causal connection between his participation in protected activity and discharge because “the complaints were remote in time”). Ms. Ratts, therefore, must produce additional evidence to establish causation. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999) (citing Conner, 121 F.3d at 1395). Ms. Ratts offers the statements of Mr. Heinicke, the individual who decided to transfer her, as evidence of the casual connection between her protected activity and her adverse employment action. This analysis is highly related to the question of pretext, and the court acknowledges that its discussions may overlap. In his deposition, Mr. Heinicke was asked why he transferred Ms. Ratts to the library. He stated: “the reason I moved her from the airport, ... is, number one, to address the perceived safety issue. Number two is the morale. And number three, we needed help at the library running the operation.” (James Heinicke Dep. at 50). The court will leave the “safety issue” for the time being and focus on the library’s personnel issue and the airport’s morale problem. In his memorandum advising Ms. Ratts of her transfer, Mr. Heinicke makes clear that she is on “temporary loan” to the library “to assist them with clerical duties while they are in the process of converting to a new recordkeeping system.” (Pis.’ Ex. 9). Ms. Ratts was never brought back to the airport. In his deposition, Mr. Heinicke is questioned regarding why Ms. Ratts is still at the library: Question: So [Ms. Ratts] is then, quote/unquote, temporarily reassigned to the library until the Court or the jury in this case makes a decision on the validity of her allegation. Is that what you’re telling us? Answer: I don’t know that that’s the only scenario under which that would occur, there may be other unforseen things that I don’t— Question: Can you conceive of any other scenario? Answer: Well, at this point whatever the eventual outcome of this process would be would help advise me on what — what to do next. (James Heinicke Dep. at 42). Ms. Ratts alleges that Mr. Heinicke’s “wait and see” policy regarding her allegations of sexual harassment lend credence to the assertion that her transfer was caused by her filing with the EEOC. The question is posed, if Ms. Ratts was transferred for reasons beyond her filing, then why is her return premised on the outcome of her allegations contained within the filing? Ms. Ratts also directs the court to Mr. Heinicke’s testimony regarding the alleged morale problem at the airport. He testified as follows: Question: Did you have any occasion at all that prior to [Ms. Ratts’] sexual harassment complaint that there was any controversy or morale problem among the employees at the airport? Answer: No. Question: Mr. Kloster didn’t tell you that there was, did he? Answer: No. (James Heinicke Dep. at 57). Mr. Hein-icke also admitted that the supposed morale problems were not solely created by Ms. Ratts. (James Heinicke Dep. at 52). Once again, Ms. Ratts argues that a cause and effect relationship existed between her protected activity and her transfer. Viewed in a light most favorable to Ms. Ratts, the court finds a reasonable jury could conclude that a causal connection existed between her protected activity and adverse employment action. Hence, Ms. Ratts has successfully demonstrated a pri-ma facie case. The court now turns to the second and third phase of the McDonnell Douglas framework. The court finds that the City has sufficiently proffered three non-diseriminatory justifications for taking adverse action against Ms. Ratts, i.e., the library’s personnel needs, the airport’s morale problem, and Ms. Ratts’ safety concerns. Ms. Ratts must now demonstrate that these justifications are merely pretextual. As indicated above, one of Mr. Heinicke’s justifications concerned Ms. Ratts’ “safety issue.” This issue involved Ms. Ratts’ complaints that a certain individual named Danny Kearns was stalking her. It appears from the record that Mr. Kearns, while not an employee of the airport, was regularly present at the facility. Mr. Heinicke testified that he transferred Ms. Ratts so she could be in a safer environment. However, Mr. Heinicke admits that he had no information regarding Mr. Kearns beyond what Ms. Ratts had told him. Ms. Ratts argues, that instead of taking steps to investigate Mr. Kearns or provide a more secure working environment, Mr. Heinicke transferred her because “the library is a safer environment. There’s always people around, you’re not alone at the library.” (James Heinicke Dep. at 51). Mr. Heinicke testified, however, that Ms. Ratts did not wish to be transferred and, in fact, desired to return to the airport. There was no investigation into whether Ms. Ratts was indeed safer at the library. Granting Ms. Ratts all possible inferences, the court finds serious inconsistencies within this justification. As to the personnel and morale justifications, the court finds Ms. Ratts has demonstrated sufficient inconsistencies as to present an issue of fact as to whether her adverse employment actions were retaliatory in nature. Therefore, the court will not grant summary judgment on this claim. ® Section 1983 Independent from her Title VII claims, Ms. Ratts asserts claims, pursuant to 42 U.S.C. § 1983, against all of the defendants. Claims brought under § 1983 provide a cause of action against individuals who, acting under the color of state law, violate a person’s constitutional rights. See 42 U.S.C. § 1983. Due to the statute’s inclusive nature, a prospective plaintiff may lev