                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         APR 14 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

SHAUNA E. SMITH,

          Plaintiff - Appellant,

v.

CITY OF OKLAHOMA CITY,
                                                       No. 01-6307
          Defendant - Appellee,
                                              (Western District of Oklahoma)
                                                (D.C. No. 99-CV-1842-R)
and

L. D. ALLEN; DON BROWNING;
PAUL BURLEY; THOMAS HART;
MIKE HEATH; DALE MARSHALL;
BILLY PRATT; NATHAN PYLE;
DARREN RAINES; DAVID SHUPE;
MARTY STUPKA; MIKE
WILLIAMS,

       Defendants.


                              ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and MURPHY, Circuit Judges.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I.    INTRODUCTION

      Shauna E. Smith (“Smith”) filed this suit against her former employer, the

City of Oklahoma City (the “City”), under Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e – 2000e-17, alleging claims for sexual harassment

hostile work environment, constructive discharge, and retaliation. After a trial on

the merits, a jury returned a verdict in favor of the City.

      Smith moved for a new trial under Rule 59 of the Federal Rules of Civil

Procedure, arguing that the district court erred in instructing the jury that

Sergeant Don Browning (“Browning”) was not her supervisor and in admitting the

City’s training videotape into evidence. The district court denied the motion and

Smith appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court

affirms in part and reverses in part the district court’s denial of Smith’s motion

for a new trial.

II.   BACKGROUND

      Smith was employed as a police officer by the City from September 1989

until November 1999.

      In 1993, Smith was assigned to the IMPACT unit of the police department.

At trial, Smith testified that while in IMPACT, she attended an ethics training

class during which a training videotape was shown. Smith testified that the

videotape included scenes from a surveillance tape depicting an officer and a


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confidential informant engaging in sexual acts. Smith testified that the videotape

produced by the City during discovery was edited and did not include the sexual

acts that were shown during the training class. Johnny Loudermilk

(“Loudermilk”), a former police officer, testified that he attended the same

training class and viewed the same videotape depicting sexual acts between the

officer and the confidential informant. The district court admitted the videotape

into evidence.

      In response to Smith’s and Loudermilk’s testimony, the City called Captain

Byron Boshell (“Boshell”) who testified that he edited the videotape for the

training class. Boshell, however, further testified that the original videotape did

not include the sexual acts testified to by Smith and Loudermilk. The City moved

to have the original videotape as edited by Boshell admitted into evidence. Smith

objected, arguing that the City failed to produce the original videotape in

discovery and did not list it as an exhibit in the pretrial order. The district court

overruled Smith’s objection and admitted the original videotape into evidence.

       In December 1994, Smith was assigned to the position of K-9 officer. She

began K-9 training in January 1995. From January 1995 until April 18, 1995,

Smith trained with Browning. At trial, Smith presented evidence that Browning

was responsible for assigning her a dog, provided her with daily one-on-one

training on dog handling, maintained the kennels, and was responsible for


                                           -3-
determining whether Smith and her dog were “qualified” after the completion of

training and various tests.

       Smith also presented evidence that Browning assigned her what was

referred to as the “psycho dog” or the “crazy dog” and instructed her to clean the

kennels with a solution which caused her injury. Smith presented evidence that

Browning was overheard informing two lieutenants, “Not to worry about it . . .

[t]he cunt can’t handle that crazy dog. He’ll eat her up and she’ll be out of here

and she’ll be off K-9.” Smith testified that Browning told her, in reference to

women in Vietnam, “we . . . f*** ‘em and stick grenades [in their genitalia].”

Smith also testified that Browning told her the United States Police Canine

Association does not like women dog handlers because they have a “certain

odor,” and later asked if she had been menstruating when the dog bit her.

      The City presented evidence that Browning submitted his training schedules

to another supervisor for approval, was not a participant in Smith’s performance

evaluations, and was not authorized to discipline Smith or to make decisions

concerning her leave. Further, the City presented evidence that the City’s

collective bargaining agreement (“CBA”) does not list the rank of sergeant as a

supervisory rank. At the close of Smith’s evidence, the City moved for judgment

as a matter of law, arguing, in part, that Smith failed to prove that Browning was




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her supervisor. The district court denied the City’s motion, but found that

Browning was not Smith’s supervisor.

      At the close of the evidence, the district court instructed the jury as

follows:

             In order to establish her claim for hostile work environment sexual
      harassment under Title VII, the Plaintiff must prove by a preponderance of
      the evidence each of the following essential elements:

      ....

      Sixth:       That a specific basis exists for imputing the conduct that
                   created the hostile work environment to the Defendant City.

      ....

             With regard to the Sixth element identified above, the basis for
      imposing liability upon an employer depends upon whether the alleged
      harassment creating the hostile work environment is committed by a
      supervisor or by a co-worker. When the source of the alleged harassment is
      a co-worker, the Plaintiff must demonstrate either that the employer failed
      to provide a reasonable avenue for complaint, or that management-level
      employees knew or should have known about the harassment, yet failed to
      take appropriate remedial action. “Management level employees” are
      defined as those supervisors who possessed substantial authority over the
      terms and conditions of the harasser’s or the harasee’s employment, such as
      the ability to hire, promote, discharge or discipline. The Court has
      determined that Sgt. Don Browning was not a management level employee.
             When the sexually hostile work environment is created by the actions
      of a supervisor, the employer is liable unless the employer meets the
      elements of the affirmative defense described in the following Instruction.

Smith objected to the instruction that Browning was not her supervisor.

      The jury returned a verdict for the City. Smith moved for a new trial,

arguing that the district court erred in instructing the jury that Browning was not

                                          -5-
her supervisor and in admitting the City’s training videotape into evidence. The

district court denied Smith’s motion.

III.   DISCUSSION

       This court reviews the district court’s decision to deny a motion for a new

trial for abuse of discretion. Osteguin v. S. Pac. Transp. Co., 144 F.3d 1293,

1295 (10th Cir. 1998). The denial of a motion for a new trial will be reversed

“only if the trial court made a clear error of judgment or exceeded the bounds of

permissible choice in the circumstances.” Weese v. Schukman, 98 F.3d 542, 549

(10th Cir. 1996). This court, however, reviews de novo the district court’s grant

of the City’s motion for judgment as a matter of law on the issue of whether

Browning was Smith’s supervisor. Colorado Cross Disability Coalition v.

Hermanson Family Ltd. P’ship I, 264 F.3d 999, 1001 (10th Cir. 2001).

       A.    Instruction regarding Browning’s supervisory status

       While this court reviews the “district court’s decision to give a particular

instruction for abuse of discretion,” the instructions are reviewed “in their entirety

de novo to determine whether the jury was misled in any way” and “whether the

jury was adequately instructed on the applicable law.” United Phosphorus, Ltd. v.

Midland Fumigant, Inc., 205 F.3d 1219, 1225 (10th Cir. 2000) (quotation

omitted). Further, “[r]eversal is appropriate only if there was prejudicial error.”




                                          -6-
Doering ex rel. Barrett v. Copper Mountain, Inc., 259 F.3d 1202, 1212 (10th Cir.

2001).

         Smith argues, by concluding as a matter of law that Browning was not

Smith’s supervisor and by instructing the jury on this issue, the district court

committed reversible error. “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.” Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Employers, however, are liable

for a co-worker’s harassment of a fellow employee only when the employer

“knew, or should have known, about the hostile work environment and failed to

respond in an appropriate manner.” See Wright-Simmons v. City of Oklahoma

City, 155 F.3d 1264, 1270 (10th Cir. 1998); see also Faragher v. City of Boca

Raton, 524 U.S. 775, 799 (1998).

         Whether Browning was Smith’s supervisor is dependent on whether

Browning “had sufficient control over [Smith] to be considered her supervisor.”

Wright-Simmons, 155 F.3d at 1271. To be considered a supervisor, one must have

“the authority to affect the terms and conditions of the victim’s employment.”

Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1034 (7th Cir.

1998).




                                          -7-
      Smith presented evidence that Browning was responsible for assigning her

a dog in the K-9 unit, providing her with daily one-on-one training, and ultimately

deciding whether she and her dog were “qualified.” The City argues that

Browning was not a supervisor because the CBA does not list the position of

sergeant as a supervisory position and because Browning did not participate in

decisions regarding Smith’s leave, annual performance evaluations, and

discipline. While a jury could consider the City’s evidence in determining

whether Browning had sufficient control over Smith to affect the terms and

conditions of her employment, the record does not support a determination that

Browning was not Smith’s supervisor as a matter of law. Because Browning

directed Smith’s daily tasks from January 1995 through April 18, 1995 and was

responsible for determining whether she and her dog were “qualified,” a

reasonable jury could conclude that Browning was Smith’s supervisor. See

Faragher, 524 U.S. at 781, 808 (noting that the supervisor was responsible for

making daily lifeguard assignments, supervising fitness training, and controlling

all aspects of day-to-day activities). Accordingly, the district court erred in not

submitting to the jury the question of whether Browning was Smith’s supervisor. 2


      2
         The City also argues that Browning was not Smith’s supervisor during
the relevant time period of her Title VII claims, i.e. November 1, 1997 through
February 3, 1999. Because Smith alleged that Browning’s conduct was part of the
alleged hostile work environment, however, his conduct is considered as part of
her timely hostile work environment claim. Nat’l R.R. Passenger Corp. v.

                                          -8-
      Even though the district court erred in instructing the jury that Browning

was not Smith’s supervisor, this court will not reverse the judgment and remand

for a new trial unless the error was prejudicial. See Doering, 259 F.3d at 1212.

If the jury found Browning to be Smith’s supervisor, the jury could have found

the City liable on Smith’s hostile work environment claim premised on a theory of

vicarious liability. See Burlington, 524 U.S. at 765; Faragher, 524 U.S. at 799.

Because the jury was instructed that Browning was not Smith’s supervisor,

however, the jury could only have found the City liable for Browning’s

harassment if it also found that the City knew, or should have known, of

Browning’s harassment. See Wright-Simmons, 155 F.3d at 1270. Therefore,




Morgan, 122 S. Ct. 2061, 2075 (2002) (holding that because “the incidents
comprising a hostile work environment are part of one unlawful employment
practice, the employer may be liable for all acts that are part of [the] single claim.
In order for the charge to be timely, the employee need only file a charge within
180 or 300 days of any act that is part of the hostile work environment.”); see
also Boyer v. Cordant Techs., Inc., 316 F.3d 1137, 1140 (10th Cir. 2003) (holding
that “Morgan implicitly overruled [prior] Tenth Circuit cases to the extent these
cases held that recovery on a Title VII hostile work environment claim is not
available for acts taken outside the statutory time period where the plaintiff knew
or should have known the conduct was discriminatory when the acts occurred”).
Moreover, the district court instructed the jury that “[i]ncidents of alleged
harassment occurring prior to November 1, 1997 may be considered as part of the
Plaintiff’s hostile work environment claim if they are part of a continuing pattern
of discriminatory harassment.” Accordingly, the jury could find the City
vicariously liable for Browning’s conduct even though it occurred prior to
November 1, 1997. See Morgan, 122 S. Ct. at 2075; See also Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524
U.S. 775, 799 (1998).

                                          -9-
because the district court’s instruction limited the theories of liability for Smith’s

hostile work environment claim, the instruction prejudiced Smith. 3 Accordingly,

the district court erred in denying Smith’s motion for a new trial on Smith’s

hostile work environment claim.

      With respect to Smith’s retaliation claim, the determination of whether

Browning was a supervisor does not affect the issue of liability. Smith alleged

that the City retaliated against her after she filed charges with the Equal

Employment Opportunity Commission (EEOC) on August 28, 1998, and on

February 3, 1999 by transferring her from the K-9 unit and constructively

discharging her. Browning, however, ceased training Smith on April 18, 1995.

Accordingly, although the district court erred in instructing the jury that




      3
          The district court instructed the jury on Smith’s constructive discharge
claim as follows:
       In connection with her claim for hostile work environment sexual
       harassment, the Plaintiff claims that she was constructively
       discharged. In order to recover damages for constructive discharge,
       the Plaintiff must establish her claim for hostile work environment
       sexual harassment, as explained in the preceding instructions, and, in
       addition; must prove that the Plaintiff’s working conditions were so
       intolerable that any reasonable person, under the same circumstances,
       would feel forced to resign.
Under the jury instructions, Smith’s constructive discharge claim was conditioned
on her ability to prove a hostile work environment claim. Accordingly, the
district court’s erroneous instruction also prejudiced Smith with respect to her
constructive discharge claim.

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Browning was not Smith’s supervisor, the instruction was not prejudicial as to

Smith’s retaliation claim.

      B.     The City’s training videotape

      When the issue of whether to grant a new trial “hinges on the admissibility

of evidence,” this court reviews the “admission of the evidence for abuse of

discretion.” Sanjuan v. IBP, Inc., 160 F.3d 1291, 1296 (10th Cir. 1998). If the

evidence was erroneously admitted, this court “will set aside a jury verdict only if

the error prejudicially affects a substantial right of a party.” Id. Further,

“[e]vidence admitted in error can only be prejudicial if it can be reasonably

concluded that . . . without such evidence, there would have been a contrary

result.” Id. (internal quotation omitted).

       Smith argues that the district court erred in admitting the City’s training

videotape into evidence because the City failed to produce the videotape in

discovery and failed to list the videotape as an exhibit in the pretrial order. At

trial, Smith and Loudermilk testified that the City showed a videotape in an ethics

training class which depicted an officer and a confidential informant engaging in

sexual acts. In response to this testimony, the City introduced the original

training videotape and the testimony of Boshell to show the absence of any

depiction of sexual acts.




                                         -11-
      The district court admitted the City’s videotape and Boshell’s testimony as

rebuttal evidence. While the district court noted that the City’s videotape was not

listed as an exhibit in the pretrial order, the district court reasoned that Smith was

not unfairly prejudiced by the introduction of either the videotape or Boshell’s

testimony. Specifically, the district court noted that the City had previously filed

Boshell’s affidavit concerning the content of the City’s videotape in support of its

motion for summary judgment.

      Because Boshell’s testimony and the City’s videotape served only to rebut

Smith’s and Loudermilk’s testimony, Smith was not unfairly prejudiced by the

admission of the City’s videotape or Boshell’s testimony. See Roberts v.

Roadway Express, Inc., 149 F.3d 1098, 1108 (10th Cir. 1998) (holding that the

plaintiff was not unfairly prejudiced by the admission of the testimony of two

rebuttal witnesses); Burks v. Oklahoma Publ’g Co., 81 F.3d 975, 980 (10th Cir.

1996) (stating that a rebuttal witness need not be listed as a witness in the pretrial

order to be permitted to testify); Canady v. J.B. Hunt Transp., Inc., 970 F.2d 710,

716 (10th Cir. 1992) (holding that the introduction of testimony that was purely

rebuttal was not an abuse of discretion). Accordingly, the district court did not

abuse its discretion in admitting the City’s videotape and Boshell’s testimony.

      Smith also argues that the City’s videotape should have been excluded

under Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§


                                          -12-
2510 – 2522, (“Title III”). Title III prohibits the use of “any wire or oral

communication [that] has been intercepted” as “evidence in any trial, hearing, or

other proceeding in or before any court . . . if the disclosure of that information

would be in violation of [Title III].” Id. § 2515. Only an “aggrieved person,”

however, has standing to challenge the legality of intercepted communications

under Title III. In re Berry, 521 F.2d 179, 185 (10th Cir. 1975) (holding that the

“[w]itness has not shown that he was a party to any intercepted wire or oral

communication or a person against whom the interception was directed. Hence,

he was not an aggrieved person and has no standing to raise the claim of illegal

surveillance.”); 18 U.S.C. §§ 2510(11), 2515. An “aggrieved person” under Title

III is “a person who was a party to any intercepted wire, oral, or electronic

communication or a person against whom the interception was directed.” 18

U.S.C. § 2510(11). Smith was not a party to the City’s videotape. Moreover, she

was not a person “against whom the interception was directed.” See id.

Accordingly, Smith is not an “aggrieved person” and lacks standing to challenge

the legality of the City’s videotape under Title III. See Berry, 521 F.2d at 185.

IV. CONCLUSION

      For the reasons stated above, this court affirms in part and reverses in

part the district court’s denial of Smith’s motion for new trial. The case is




                                         -13-
remanded to the district court for a new trial on Smith’s hostile work

environment and constructive discharge claims in accordance with this opinion.

                                      ENTERED FOR THE COURT



                                      Michael R. Murphy
                                      Circuit Judge




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