The opinion of the court was delivered by: Judge R. Brooke Jackson
The case is before the Court on plaintiff's motion for partial summary judgment [docket #43] and defendants' motion for summary judgment [#46]. The motions have been fully briefed, and the Court heard oral argument on September 11, 2012. Two other motions pending at that time [#58 and #66] were granted at the beginning of the hearing.
Theresa Garcia alleges in her Second Amended Complaint [#58] that she has been a deputy sheriff with the Arapahoe County Sheriff's Office since 1997. On December 7, 2010 she submitted a written complaint to the Internal Affairs division of the Sheriff's Office in which she stated that "I work in a hostile, offensive environment. [#58-3]. Her letter addressed what she considered to be derogatory comments about and discriminatory treatment of inmates who were Mexicans illegally present in the United States. Deputy Garcia was interviewed by a Sheriffs' Office official on the same day about her concerns. During the course of the recorded interview Deputy Garcia mentioned that she had been born in Mexico but raised in the United States, and that she had been fighting with the Department of State trying to get a passport for the last year. Transcript [#43-13] at 13; 17-18. The interviewer asked, "you're a U.S. citizen, correct?" Id. at 18. Deputy Garcia responded affirmatively, indicating that that is what she had been told all her life, and that her mother was a U.S. citizen born in Colorado. However, she acknowledged that Immigration personnel were indicating that she did not have enough documentation, and that they could not decide whether she was a citizen. Id.
On the next day, December 8, 2010 Deputy Garcia was notified that she was being suspended with pay. In her Second Amended Complaint she alleges she was given no reason for the suspension. Second Amended Complaint [#58] ¶18. In her deposition she testified that she was told that it was because of the complaints she had filed, the seriousness of the complaints, and the number of people involved. [#43-8] at 172-73. The written notice of suspension does not provide a reason. [#43-3]. However, the Sheriff's Office has an internal policy requiring that deputies must be citizens. [#52-11]. Defendants' position is that, whether or not Deputy Garcia was notified of the reason, she was suspended pending an investigation of whether she is a United States citizen. Deputy Garcia points to the timing -- that this question was raised the day after she complained about discrimination and after she had been a deputy sheriff in that office for 13 years -- and contends that it was an act of retaliation.
Between December 8 and December 16, 2010 defendant Line was told by an agent of the Immigration and Customs Enforcement Section of the Department of Homeland Security that Deputy Garcia had an "Alien" file at that agency, although the agent made no judgment as to whether Deputy Garcia was an illegal immigrant or could legally work in the United States.
[#43-11] at 133. However, defendants also obtained verification of her Social Security number from the Social Security Administration. [#43-24]. They learned that she had been issued a valid Social Security number. Those facts appear to be the extent of the information obtained by defendants during that period of time.
Deputy Garcia contends that on December 16, 2010, still not knowing why she had been suspended, she was called into a meeting at the Sheriff's Office and asked to produce evidence of her citizenship. She had not brought any evidence. She was then handed a written termination letter signed by Sheriff Robinson. The letter [#43-4] indicated that she would schedule a meeting with the Sheriff no later than December 23, 2010 to present "evidence relevant to your employment status." Id. The meeting lasted 11 minutes.
On December 22, 2010, in a recorded meeting with Sheriff Robinson
[#43-32], Deputy Garcia indicated that she was a United States
citizen, because her mother was a United States citizen when Deputy
Garcia was born. Id. at 3. She presented, among other things, her
mother's birth certificate and Social Security number and information
about the applicable law. She indicated (which defendants had verified
on their own) that she had a Social Security number. Id. at 4. Sheriff
Robinson told her (incorrectly) that it would be a federal felony for
him to employ her if she were not a U.S. citizen. Id. at 26. He also
told her that the only documents he would accept as proof of U.S.
citizenship were a passport, a birth certificate, a certificate of
citizenship or a naturalization certificate. Id. at 40.*fn1
Deputy Garcia's evidence was deemed insufficient, and the
In fact, Deputy Garcia was a United States citizen. On December 29, 2010 the State Department issued a passport to her. [#43-36]. She met with Sheriff Robinson on February 4, 2011 and showed him her passport. He reinstated her on February 9, 2011. [#43-38]. She was reinstated with full back pay.
Plaintiff's Second Amended Complaint names Sheriff J. Grayson Robinson, in his official and personal capacities, and four other Sheriff's Office officials in their personal capacities as defendants. However, during oral argument plaintiff indicated that she was voluntarily dismissing her claims against named defendants David Walcher and David Wellman. Accordingly, the defendants remaining are Sheriff Robinson, Captain Vince Line, and Undersheriff Mark Campbell. Plaintiff asserts six claims for relief: (1) a § 1983 claim asserting denial of equal protection under the Fourteenth Amendment; (2) retaliation in violation of Title VII of the Civil Rights Act of 1964; (3) national origin discrimination in violation of Title VII; (4) common law civil conspiracy; (5) a § 1985(3) and § 1986 claim of conspiracy based upon national origin; and (6) common law outrageous conduct.
The Court may grant summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party has the burden to show that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324. A fact is material "if under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson,477 U.S. at 248. The Court will examine the factual record and make reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Concrete Works of Colorado, Inc. v. City and County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994).
I.PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT [#43]: DENIED.
Plaintiff seeks summary judgment on the Second Claim as asserted in her Second Amended Complaint in which she alleges that she was suspended and terminated in retaliation for her having asserted discrimination claims. In order to establish a prima facie case of retaliation, she must show that "(1) that she engaged in protected opposition to Title VII discrimination, (2) she suffered an adverse employment action, and (3) there is a causal connection between the protected activity and the adverse employment action." Meiners v. University of Kansas, 359 F.3d 1222, 1229 (10th Cir. 2004). If she establishes a prima facie case, then defendants "must articulate a legitimate, nondiscriminatory reason for the adverse employment action." Id. If that is done, then the plaintiff must demonstrate that the asserted reason was pretextual. Id.
As the Court indicated during the hearing, there is a genuine dispute of material fact concerning whether there is a causal connection between Deputy Garcia's complaint about discrimination in the workplace and her suspension and termination. There is a dispute of fact and possibly a dispute of law as to whether the citizenship requirement is a legitimate business reason; the parties disagree but have not briefed the issue. Even assuming that it is a legitimate requirement for a law enforcement officer, there is a genuine dispute of material fact as to whether that reason was ...