Broil v. Kansas Bureau of Investigation

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DEBORAH C. BROIL,
Plaintiff,
v.
KANSAS BUREAU OF
INVESTIGATION,
Defendant.
Case No. 24-2029-DDC-RES
MEMORANDUM AND ORDER
The court located a misstatement of law in its previous Memorandum and Order (Doc.
37). The court quoted caselaw for the proposition that the “‘traditional hostile-work-
environment concepts of “severe” or “pervasive” still apply in a retaliatory-harassment claim.’”
Id. at 26 (quoting Bermudez v. City of Topeka, No. 18-cv-4141-HLT-ADM, 2020 WL 206766, at
*6 (D. Kan. Jan. 14, 2020)). Seizing on this quoted authority, the court exported its severe-or-
pervasive analysis from plaintiff’s hostile-work-environment claim. Id. The court reasoned that,
because plaintiff had failed to plead a viable hostile-work-environment claim, she also failed to
plead a retaliatory-harassment claim. Id.
But the standards for these two claims aren’t the same. The standard for a retaliatory-
hostile-work-environment claim is whether the harassment is “‘sufficiently severe or pervasive
that it could well dissuade a reasonable worker from engaging in protected activity.’” Bermudez,
2020 WL 206766, at *6 (quoting Adcox v. Brennan, No. 15-cv-9258-JWL, 2017 WL 2405326, at
*7 (D. Kan. June 2, 2017)). In contrast, the standard for a hostile-work-environment claim asks
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whether “the defendant’s conduct was so severe or pervasive as to alter the terms or conditions
of employment.” Throupe v. Univ. of Denv., 988 F.3d 1243, 1252 (10th Cir. 2021). So, while
both standards incorporate the concept of “severe or pervasive,” they employ distinct metrics to
determine whether conduct is severe or pervasive. Thus, the court shouldn’t have analyzed
plaintiff’s retaliatory-harassment claim under the same rubric as her hostile-work-environment
claim.
The court expresses no opinion whether plaintiff’s retaliatory-harassment claim should
have survived under the correct legal standard. And the court notes that plaintiff had asked the
court to apply the same standard to her hostile-work-environment claim and her retaliatory-
harassment claim. See Doc. 35 at 14, 26. Still, the court issues this Order to notify the parties of
its misstatement of law. The court will convene a status conference by telephone on Thursday,
February 5, 2026, at 2:30 p.m. to solicit the parties’ views on how this case, in light of this
misstatement, should proceed.
IT IS THEREFORE ORDERED THAT the court will convene a status conference by
telephone on Thursday, February 5, 2026, at 2:30 p.m.
IT IS SO ORDERED.
Dated this 29th day of January, 2026, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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