United States District Court, D. Colorado
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT
MARCIA S. KRIEGER, Chief District Judge.
THIS MATTER comes before the Court pursuant to the Defendant's ("WSFPD") Motion for Summary Judgment (# 31), the Plaintiffs' response (# 35, 36), and WSFPD's reply (#38); and the Plaintiffs' Motion to Strike (# 45) certain arguments raised in WSFPD's reply, WSPFD's response (# 46), and the Plaintiffs' reply (# 47, 48).
The Court summarizes the relevant facts here and elaborates as necessary in its analysis. The evidence is viewed in the light most favorable to the non-movant.
Ms. Schneider and Ms. Stroman were longtime employees of the WSFPD, serving as Public Information Officers. They allege that they were subjected to repeated sexually-tinged jokes, comments, and hostility from male firefighters and managers, beginning on or about March 23, 2010. After they lodged complaints about the harassment, they contend that they were subjected to further harassment and other forms of retaliation. Each Plaintiff resigned in December 2010, alleging that she was constructively discharged.
Each Plaintiff asserts eight claims for relief: (i) hostile environment sexual harassment in violation of Title VII, 42 U.S.C. § 2000e et seq.; (ii) disparate treatment on the basis of sex in violation of Title VII; (iii) a claim for "constructive discharge" in violation of Title VII; (iv) hostile environment sexual harassment in violation of the Colorado Anti-Discrimination Act ("CADA"), C.R.S. § 24-34-301 et seq.; (v) disparate treatment on the basis of sex in violation of CADA; (vi) a claim for "constructive discharge" in violation of CADA; (vii) retaliation in violation of Title VII; and (viii) retaliation in violation of CADA.
WSFPD moves for summary judgment (# 31) on all claims by the Plaintiffs. After briefing was completed, the Plaintiffs moved (# 45) to "strike" a portion of WSFPD's reply brief that, the Plaintiffs believe, raised a new argument relating to the statute of limitations for the first time in the reply.
A. Standard of review
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is "genuine" and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed.R.Civ.P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.
If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
B. Disparate treatment claim
Although the Plaintiffs' Complaint and the parties briefing begin with the hostile environment claim, the disparate treatment claim provides a more logical place to start because the Plaintiffs argue that much of the conduct underlying that claim informs the hostile environment claim.
To establish a claim for disparate treatment under Title VII, a plaintiff must first demonstrate a prima facie case of sex discrimination, showing: (i) that she met the minimum objective qualifications for the position she held; (ii) that she suffered an adverse employment action; and (iii) that adverse action occurred in circumstances giving rise to an inference of discrimination. See e.g. Barlow v. C.R. England, Inc., 703 F.3d 497, 505 (10th Cir.2012). If the Plaintiff carries that burden, WSFPD is required to articulate a legitimate, non-discriminatory reason for the adverse action, and the Plaintiff bears the burden of proving that the proffered reason is a pretext and the sex discrimination motivated the decision to take the adverse action. Id. Similar standards apply to her state-law claim. See e.g. St. Croix v. Univ. of Colo. Health Sciences Ctr., 166 P.3d 230, 236 (Colo.App. 2007).
WSPFD appears to concede that Ms. Stroman met the objective qualifications for her position, so the Court turns to the second element of the prima facie case, the existence of an adverse employment action. Ms. Stroman does not clearly and expressly delineate the acts she contends constitute adverse employment actions. At best, the Court can ascertain from Ms. Stroman's summary judgment response, she contends that she suffered the following adverse employment actions: (i) on one occasion, Darren Jacquez "failed to notify Ms. Stroman of the need for a press release.. and instead gave this responsibility to a [less-qualified] male officer"; (ii) she was denied the opportunity to use a WSFPD vehicle when traveling on official business, even though male employees were permitted to use WSPFD vehicles in such circumstances; (iii) Todd Vess removed her ability to access the WSPFD computer system as an administrator; (iv) Herbert Brady required her to meet with an organizational psychologist concerning a sexual harassment complaint by Ms. Schneider, even though Ms. Stroman had no involvement with the incident about which Ms. Schneider complained. In addition, although not expressly mentioned in either party's briefing, the Court understands that Ms. Stroman also asserts that her decision to resign from employment in December 2010 constitutes a constructive discharge that could constitute an adverse employment action.
1. Press release
Turning to the press release, Ms. Stroman's response brief points to a short portion of her deposition as the only evidence addressing this matter. Ms. Stroman testified that in June 2010, while off-duty and out shopping, she received a page noting that WSFPD officers were responding to a call of a possible drowning. She testified that in such circumstances, the commanding officer overseeing the call (in this case, Mr. Jacquez) would typically contact her (as Public Information Officer) to relay information about the incident. In this instance, however, she did not receive such request. Ms. Stroman testified that she believed that Mr. Jacquez instead called a male officer, Todd Vess, and "asked him to be the [Public Information Officer]" with regard to that incident. She infers that this is what happened because "Todd more or less said that Darren felt better talking to him." The record does not reveal anything more about this alleged comment by Mr. Vess, when it was made, or the specific words of this comment. (In another portion of the deposition transcript, Ms. Stroman testified that, sometime after the incident, she was contacted by Captain Mike Blackwill. In response to his explanation of the occurrence, she inquired why she was not notified earlier and was told that "Well Darren was incident commander, and I think he just feels more comfortable with calling Todd.") Ms. Stroman acknowledges that the incident call did not result in any news reports about the possible drowning and she did not recall seeing any incident report about the matter.
Ordinarily, an adverse action is one that results in "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir. 2007). The Court cannot say that this single instance in which Mr. Jacquez called Mr. Vess rather than Ms. Stroman constitutes an adverse employment action. There is no indication that this single incident effected a permanent change in Ms. Stroman's duties or otherwise materially modified her job requirements in any way. (Indeed, it is not entirely clear that, other than Ms. Stroman not receiving a contemporaneous call about the possible drowning, there was any apparent change in her job responsibilities whatsoever.) Accordingly, this incident does not amount to an adverse employment action.
2. Use of official vehicle
Ms. Stroman alleges that she was denied the opportunity to use an official vehicle when male employees were given that privilege. Her summary judgment response cites only to a short passage from her deposition in support of this contention.
Ms. Stroman testified that on one occasion in June 2010, she asked her supervisor, Mr. Brady, for permission to drive a WSPFD vehicle to attend a work-related meeting in Denver. Mr. Brady advised her (in a manner that she describes as "condescending") that "all district vehicles needed to remain in the district." Instead, she drove her own vehicle and submitted a request for reimbursement of mileage costs, which was paid by WSPFD without objection. Ms. Stroman acknowledges that she is unaware of whether other employees were denied the opportunity to drive a district vehicle to a function outside of the district. She testified that she was aware of (presumably) male employees who "often took district vehicles to classes at night, " although she does not indicate where such classes occurred.
The Court cannot say that a single instance of WSPFD of denial of use of a district vehicle to attend an out-of-district event constitutes an adverse employment action. Ms. Stroman does not testify that using a district vehicle for such purposes was a regular duty or benefit of her position. Notably, she does not allege that Mr. Brady's refusal of her request to drive a district vehicle in June 2010 constituted a deviation from a past practice she had followed. Rather, the record seems to suggest that her request in June 2010 was the first time she had ever asked to drive a district vehicle. Where there is no clear evidence that driving a district vehicle was an established duty or benefit of Ms. Stroman's job, the Court cannot say that Mr. Brady's denial of that request on one occasion constituted any adverse change to those duties or benefits. In any event, even assuming that Mr. Brady denied her a benefit she was otherwise entitled to, the record reflects that WSPFD nevertheless fully reimbursed her for the expenses she incurred in driving her own vehicle to the meeting in ...