United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART ECF. DOC 34 & GRANTING ECF DOC. 35
JOHN L. KANE, Senior District Judge.
Before me in this employment discrimination action are two motions for summary judgment: the joint motion of Defendants the RHA and Ms. Lopez at Doc. 34, and Defendant LPHF's separate motion at Doc. 35. For the following reasons, regarding Doc. 34, I GRANT summary judgment in favor of Defendants Lopez and the RHA on Mr. Ragsdell's Second (Rehabilitation Act) and Fourth (wrongful discharge-constructive discharge) claims and DENY summary judgment for the same on Mr. Ragsdell's First (Equal Protection) and Third (CADA) claims. I further GRANT LPHF's Motion for Summary Judgment, Doc. 35, in full.
II. JURISDICTION AND VENUE
This action arises under the Constitution and laws of the United States and is brought per Title 42 U.S.C. § 1983 and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. I have jurisdiction per 28 U.S.C. §§ 1331, 1343 and 1367 and 42 U.S.C. § 1983. Jurisdiction supporting Mr. Ragsdell's claim for attorney fees and costs is conferred by 42 U.S.C. § 1988 and 29 U.S.C. § 794a(b).
The employment practices alleged to be unlawful were committed within the United States District of Colorado. Venue is proper in this Court per 28 U.S.C. § 1391.
III. STANDARD OF REVIEW
Summary judgment is appropriate 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(c); Adamson v. Multi Community Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). A disputed fact is material if it could affect the outcome of the suit under the governing law. Adamson, 514 F.3d at 1145. A factual dispute is genuine if a rational jury could find for the nonmoving party on the evidence presented. Id. In deciding whether the moving party has carried its burden, I may not weigh the evidence and must view the evidence and draw all reasonable inferences from it in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Adamson, 514 F.3d at 1145. Neither unsupported conclusory allegations nor a mere scintilla of evidence in support of the nonmovant's position are sufficient to create a genuine dispute of fact. See Mackenzie v. City and County of Denver, 414 F.3d 1266, 1273 (10th Cir. 2005); Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997).
IV. FACTUAL BACKGROUND
Defendant the Regional Housing Alliance of La Plata County (the "RHA") is a small community based housing assistance organization, with four employees during the relevant time period, helping low to middle income individuals and families purchase homes in southwestern Colorado. The RHA is a governmental entity and operates under a funding agreement between La Plata County, the City of Durango, and the Towns of Ignacio and Bayfield. Defendant La Plata Homes Fund ("LPHF") is a non-governmental, non-profit affordable housing agency also designed to help individuals and families purchase homes in southwestern Colorado. As a non-profit, LPHF had the ability to borrow money in compliance with TABOR and to apply for major funding sources including the Department of Treasury's program for Community Development Financial Institutions ("CDFI") certification. It obtained CDFI certification.
LPHF is governed by a voluntary board of directors who meet on a monthly basis. The individuals who make up the LPHF board are entirely separate from those that serve on the RHA Board of Directors. LPHF has no employees and all of LPHF functions are performed by contractors. Personnel issues were never discussed at LPHF meetings. In early September 2008, LPHF and the RHA entered into a MasterAgreement for Cooperative Services. Upon entering into the Master Agreement, the RHA and LPHF agreed that:
[LPHF] shall not be deemed to be an enterprise of the RHA or a subsidiary entity owned or controlled by the RHA. [LPHF] shall only exercise the authority set forth herein or in a supplementary contract between the parties, and shall not otherwise be deemed to be an agent of the RHA. The parties agree that [LPHF] shall be deemed to be an independent organization and that it shall not be subject in any way to the provisions of state law that apply to governmental entities, including the provisions of TABOR.
Exhibit at p. 2, ¶8. LPHF contracted with the RHA for use of their executive director to provide services specific to grants available and for defined time periods. At all times material, Jennifer Lopez was Executive Director of the RHA.
In February of 2011, Mr. Ragsdell was hired over other applicants by Ms. Lopez and the RHA's then Deputy Director, Julie Levy, to be a Client Services Advisor. At the time of his hire, Ms. Lopez and Ms. Levy were both aware that Mr. Ragsdell has multiple sclerosis ("MS"), but neither was concerned this would be an issue or a reason not to hire him. Upon his hire, Mr. Ragsdell acknowledged receipt of the RHA handbook, and further acknowledged that he had the opportunity to review the handbook. After review of the RHA Handbook, Mr. Ragsdell did not have any questions concerning its contents. Before termination of an employment relationship, the RHA Handbook provides several types of discipline including verbal counseling, official written reprimand and suspension. Mr. Ragsdell further acknowledged that, through the policies of the handbook and his personal understanding, the RHA utilized a system of progressive discipline, reaching termination after prior lesser discipline had been conducted.
From Mr. Ragsdell's hiring through February of 2011, Ms. Levy was Mr. Ragsdell's immediate supervisor. Part of Mr. Ragsdell's duties as a Client Services Advisor were to maintain client files. In the fall of 2010, Mr. Ragsdell received a performance evaluation from Ms. Levy after his first six months of probationary employment. The evaluation was generally positive, but did not result in a pay raise and indicated Mr. Ragsdell could improve on setting realistic deadlines. In the beginning of 2011, Ms. Levy announced that she would be leaving the RHA for another job.
Before she left her employment with the RHA, Ms. Levy sought a specific document from a client file. When both she and Mr. Ragsdell were unable to locate the document in the file, Ms. Levy became concerned that loans for which Mr. Ragsdell was responsible were at risk and that the RHA's resources were not protected. Upon realizing the status of the files, Ms. Levy consulted with Ms. Lopez and voiced her concern that the status of the files may cause issues with the upcoming audit. After Ms. Levy announcing she was leaving, on February 7, 2011, Mr. Ragsdell received his one year performance review from Ms. Levy. Mr. Ragsdell's capabilities, as rated by Ms. Levy, stayed generally the same with the exceptions that his product/technical knowledge and time management scores received one and two point reductions, respectively. Around the same time as Mr. Ragsdell's one year performance evaluation, and after Ms. Levy had informed the RHA that she would be leaving, Mr. Ragsdell informed Ms. Lopez that he had applied for another job as a radio deejay.
In light of the upcoming departure of Ms. Levy and Mr. Ragsdell's request to take on more responsibilities, and in an attempt to persuade him from leaving the RHA for other employment, thereby leaving the RHA with only two employees, Mr. Ragsdell received a raise and additional responsibilities in February 2011. At the time of Mr. Ragsdell's raise in early February 2011, Ms. Lopez was "fairly unaware" of Mr. Ragsdell's previous performance. Lopez Dep. 158:17-20. Shortly after Mr. Ragsdell received his raise, and shortly before Ms. Levy left the RHA, Ms. Levy informed Ms. Lopez about some issues concerning her regarding Mr. Ragsdell's performance. After Ms. Levy informed Ms. Lopez about Mr. Ragsdell's various deficiencies, the three met for a short meeting in which the various issues with Mr. Ragsdell's employment were discussed. At the close of the meeting, Ms. Levy compiled a memorandum documenting her concerns that were discussed in the meeting. Sometime between February 7th and 17th, Mr. Ragsdell informed Ms. Lopez that his medical condition would require him to increase his medical visits to Denver from twice per year to four times per year. Mr. Ragsdell was never denied leave to go to a medical appointment and attended one of his requisite trips between the time he notified Ms. Lopez of his increased frequency and when he quit.
To prepare the RHA for upcoming federal audits and to provide temporary support to the client services activities because of Ms. Levy's departure, in late January 2011, the RHA hired Marietta Linney as a temporary assistant. Just after Ms. Linney was hired, on Friday, January 28, 2011, Ms. Lopez directed Mr. Ragsdell to spend the following Tuesday morning with Ms. Linney in an effort to get Mr. Ragdell's files in order. In preparing for the upcoming audit in 2011, Ms. Linney became concerned about the condition of the files and what had not been done. In addition to preparing closed files for audit Ms. Linney also assisted Mr. Ragsdell in organizing his other open/intake files. Ms. Linney recalled that the client intake files were strewn about Mr. Ragsdell's office, "on the floor all over, spread all over. Some on the counter, some on the filing cabinets, kinda everywhere." Linney Dep. 30:1-7; Ex. 81, ¶ 10. Mr. Ragsdell maintains his files were in disarray because Ms. Lopez had just ordered him to reorganize the files.
Near the approach of the financial audits, Ms. Lopez sent Plaintiff two emails, on March 24 and 25, 2011. In the emails, Ms. Lopez stated:
"Jason - It would be prudent to tidy your office up for the auditors next week-if you need to come in this weekend to do so I would let you bank the hours-thanks" [Email from Ms. Lopez to Plaintiff regarding office, dated March 24, 2011.].
Jason-please do as much as you can around audit finalization-if you don't get it all done today would you consider coming in this weekend? [Email chain between Plaintiff and Ms. Lopez regarding FSA Question, dated March 23, 2011.]
Mr. Ragsdell came in over that weekend and did as requested. In the beginning of March 2011, Mr. Ragsdell took an approved two week vacation to Europe, returning to work on March 15, 2011. On the day following Mr. Ragsdell's return to work, Ms. Lopez sent an email to him noting her concern that his leave accruals were low due to the recent vacation and informing him that he may want to think about banking hours to ensure that he had enough leave time accrued to accommodate his upcoming medical appointments.
In early April 2011, with Pam Moore coming on as Deputy Director, the employees of the RHA discussed switching offices. In discussing the office moves, Mr. Ragsdell noted that the move to another office would "be better for [him] anyways because it would be cooler." Ragsdell Dep., Vol. I, 166:12-21. The night before the office move, on March 28, 2011, Ms. Lopez asked Mr. Ragsdell to sign an acknowledgment form concerning Red Flag Rules. The Red Flag Rules addressed confidentiality and proper care of personal information to ensure that it was not inadvertently disclosed to the public. Mr. ...