United States District Court, D. Colorado
RAYMOND P. MOORE, District Judge.
Plaintiff Darrell Miller ("Plaintiff" or "Miller") brings four claims against his employer, Defendant United States Small Business Administration ("Defendant" or "SBA") through its current Administrator, regarding his non-selection for a position as a SBA Human Resource Specialist.
For the reasons stated below, the Court: DENIES Plaintiff's Motion for Partial Summary Judgment (ECF No. 27); GRANTS Defendant's Motion for Summary Judgment (ECF No. 31); and DENIES Plaintiff's Motion in Limine (ECF No. 35).
I. LEGAL STANDARDS
Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569-70 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). Once the moving party meets its initial burden of demonstrating an absence of a genuine dispute of material fact, the burden then shifts to the non-moving party to move beyond the pleadings and to designate evidence which demonstrates the existence of a genuine dispute of material fact to be resolved at trial. See 1-800-Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) (citation omitted). A fact is "material" if it pertains to an element of a claim or defense; a factual dispute is "genuine" if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248. In considering whether summary judgment is appropriate, the facts must be considered in a light most favorable to the non-moving party. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013) (citations omitted).
Only admissible evidence may be considered when ruling on a motion for summary judgment. Jaramillo v. Colorado Judicial Dep't, 427 F.3d 1303, 1314 (10th Cir. 2005) (citation omitted) (holding that hearsay evidence is not acceptable in opposing a summary judgment motion); World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985). Affidavits must be based on personal knowledge and must set forth facts that would be admissible evidence at trial. Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (quotations and citation omitted). "Conclusory and self-serving affidavits are not sufficient." Id. The Court will not consider statements of fact, or rebuttals thereto, which are not material or are not supported by competent evidence. Fed.R.Civ.P. 56(c)(1)(A), 56(e)(2), 56(e)(3). "[O]n a motion for summary judgment, it is the responding party's burden to ensure that the factual dispute is portrayed with particularity, without depending on the trial court to conduct its own search of the record." Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (internal quotation and citation omitted). The Court is "not obligated to comb the record in order to make [Plaintiff's] arguments for [him]." See Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir. 2000). Further, Local Rule 7.1(D) provides that "[e]very citation in a motion, response or reply shall include the specific page or statutory subsection to which reference is made." D.C. Colo. L. Civ. R. 7.1(D).
II. PROCEDURAL BACKGROUND
On May 17, 2013, Plaintiff filed a four-count Complaint alleging that Defendant violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-5 et seq., as amended, 42 U.S.C. § 1981 ("Section 1981") and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34 (2012). Defendant allegedly violated Plaintiff's rights by discriminating against him based on his: (1) race and color in violation of Title VII and Section 1981 (ECF No. 2 at 3-4); (2) gender in violation of Title VII (ECF No. 2 at 4-5); and (3) age in violation of the ADEA (ECF No. 2 at 5-7), as well as by retaliating against him for his having engaged in protected activity (ECF No. 2 at 7-8).
On March 6, 2014, Plaintiff moved for partial summary judgment. (ECF No. 27.) Plaintiff "seeks a partial summary judgment, namely, that the claims as defined in the [C]omplaint and admitted to in the Final [Small Business Administration] Agency Decision, (FAD) be reduced to a judgment and that this [C]ourt go forward on the [d]amages portion of the suit." (ECF No. 27 at 1.)
On March 14, 2014, Defendant moved for summary judgment on each of Plaintiff's claims. (ECF No. 31.)
On April 18, 2014, Plaintiff moved to prevent the Court from considering certain evidence submitted by Defendant in support of its motion for summary judgment. (ECF No. 35.)
III. UNDISPUTED AND MATERIAL FACTUAL BACKGROUND
The facts as recited below are based on adequate citations to the record which would be admissible at trial or based on uncontested averments in the parties' respective filings. The facts are recited in a light most favorable to the non-moving party. Facts denied on the basis of "no personal knowledge" are insufficient to create a disputed material fact because it is the obligation of the non-moving party to designate evidence which contradicts the purportedly contested fact. Fed.R.Civ.P. 56(e)(2), 56(e)(3); see 1-800-Contacts, 722 F.3d at 1242.
Plaintiff is a Caucasian, white male. ( Compare ECF No. 31 at ¶ 11 with ECF No. 36 at ¶ 11 (identifying that the parties do not dispute Plaintiff's race, color, and gender).) At the time of his non-selection to the Human Resource Specialist position, Plaintiff was sixty (60) years old. ( Compare ECF No. 31 at ¶ 11 with ECF No. 36 at ¶ 11 (identifying that the parties do not dispute Plaintiff's age at the time of non-selection).) Defendant currently employs Plaintiff as a Personnel and Payroll Specialist (GS-09, Step 6) in its Office of Human Resource Solutions (formerly known as the Office of Human Capital Management ("OHCM")), Personnel Services Division located in Denver, Colorado. (ECF 31-1, Dep. of Darrel Miller at 23:1-6.) Defendant has employed Plaintiff as a Personnel and Payroll Specialist since August 2003. ( Compare ECF No. 27 at ¶ A.2 with ECF No. 32 at ¶ A.2.)
On April 22, 2011, the SBA did not select Plaintiff for the position of Human Resources Specialist announced under Job Announcement No. 11D-154-BC. (ECF No. 31-3 at ¶ 64, Decl. of Paul Gutierrez.) Three individuals participated in evaluating and selecting the Human Resources Specialist Position candidates. These individuals were Paul Gutierrez ("Gutierrez"), Joseph Eitel ("Eitel"), and David Robbins ("Robbins"). (ECF No. 31-3 at ¶¶ 33, 64; ECF No. 31-4 at ¶¶ 25 & 48, Decl. of Joseph Eitel.) On April 28, 2011, Gutierrez communicated that Plaintiff was not selected for the Human Resource Specialist position. (ECF No. 31-3 at ¶ 65; ECF No. 31-19, Apr. 28, 2011 e-mail from Paul Gutierrez.)
Gutierrez had been Plaintiff's immediate supervisor from approximately June 2002 until the end of February 2011. (ECF No. 31-3 at ¶ 10.) Eitel served as Plaintiff's "team lead" from June 2002 to February 2011 and supervised Plaintiff on a day-to-day basis during that time. (ECF No. 31-4 at ¶¶ 10, 12.) For fiscal years 2003, 2004, 2005, and 2006, Plaintiff received satisfactory annual performance evaluations from Gutierrez. (ECF No. 31-3 at ¶ 21.) In 2005, Gutierrez temporarily detailed Plaintiff to assist Human Resource Specialists. (ECF No. 31-3 at ¶ 14.) This temporary detail to assist Human Resource Specialists was stopped because Plaintiff unsuccessfully fulfilled his duties. (ECF No. 31-3 at ¶ 14.) Gutierrez and Eitel believe Plaintiff's work performance in his position began deteriorating in fiscal year 2008. (ECF No. 31-3 at ¶ 23; ECF No. 31-4 at ¶ 18.) For fiscal year 2008, Plaintiff received an annual performance review from Gutierrez with a rating of "2" or "below expectations" in the category of "Technical Work." (ECF No. 31-24, Miller 2008 Annual Performance Review.) For fiscal years 2009 and 2010, Plaintiff received annual performance reviews from Gutierrez assigning him an overall rating of "2" or "below expectations." (ECF No. 31-3 at ¶¶ 25, 27; ECF No. 31-25, Miller 2009 Annual Performance Review; ECF No. 31-26, Miller 2010 Annual Performance Review.) In 2010, Gutierrez informed Plaintiff that Plaintiff's work was deficient and required substantive review. (ECF No. 31-3 at ¶ 28; ECF No. 31-27, July 20, 2010 Poor Performance Letter.) Due to Plaintiff's poor work performance in 2010, Gutierrez withheld Plaintiff's within-grade pay increase. (ECF No. 31-3 at ¶ 31; ECF No. 31-29, Aug. 13, 2010 Denial Letter.)
Gutierrez also supervised Plaintiff's co-worker Carrie Marez ("Marez") who was hired as a Personnel and Payroll Specialist, GS-09, in June 2010. (ECF No. 31-3 at ¶¶ 60, 67.) Eitel served as Marez's "team lead." Id. Marez is thirty-nine years old and is a Hispanic, brown female. ( Compare ECF No. 27 at ¶¶ C.1(a), E.1(b) with ECF No. 32 at ¶¶ C.1(a), E.1(b) (identifying that the parties do not dispute this fact).) Marez received an overall performance rating of 4 ("Exceeds Expectations") on her 2010 annual performance review. (ECF No. 31-3 at ¶¶ 68-70; ECF No. 31-4 at ¶¶50-52; ECF No. 31-22, Marez 2010 Performance Review.) Previously, Marez worked at the U.S. Department of Energy ("DOE") where her duties involved human resource tasks, including staffing, recruitment, and new employee set-up issues. (ECF No. 31-3 at ¶¶ 71, 73; ECF No. 31-21, Marez Resume.)
On March 30, 2011, Gutierrez sent an e-mail announcing a vacancy for the Human Resource Specialist position to Plaintiff and his co-workers, Lisa Lawrence ("Lawrence") and Marez, who were also Personnel and Payroll Specialists (GS-09) in OHCM Denver. (ECF No. 31-7, Mar. 30, 2011 e-mail.) Only Marez and Plaintiff applied for the position. (ECF No. 31-3 at ¶ 42.) The SBA designed the Human Resource Specialist position to be a "GS-09 developmental position in the areas of staffing and recruitment, " which meant that the selectee would start at the GS-09 level and "would be expected to learn and develop in order to progress to higher GS-levels, " with promotion potential up to GS-13. (ECF No. 31-3 at ¶ 35; ECF No. 31-8, Vacancy Announcement; ECF No. 31-15, Apr. 20, 2011 e-mail from Gutierrez to Robbins.) The selectors for the Human Resource Specialist position considered "a candidate's ability to learn new skills, efficiency, enthusiasm, attention to customer service, and ability to communicate effectively and to build and manage relationships" among the key selection criteria. (ECF No. 31-3 at ¶ 37; ECF No. 31-4 at ¶ 28.)
On April 20, 2011, Gutierrez and Eitel interviewed both Plaintiff and Marez. (ECF No. 31-3 at ¶ 46.) Gutierrez and Eitel considered the interview an important component of the selection process and hiring decision for the Human Resource Specialist position. (ECF No. 31-3 at ¶¶ 47, 80; ECF No. 31-4 ¶ 32.) Of both applicants, Gutierrez and Eitel asked a series of seven pre-determined questions. (ECF No. 31-3 at ¶¶ 48, 49, 59; ECF No. 31-4 at ¶¶ 33, 34, 42; ECF No. 31-10, Eitel Interview Notes for Miller; ECF No. 31-11, Eitel Interview Notes for Marez; ECF No. 31-12, Gutierrez Interview Notes for Miller; ECF No. 31-13, Gutierrez Interview Notes for Marez.) Both interviewers took hand-written notes recording the applicants' responses to the extent feasible which is part of each interviewer's standard practices. (ECF No. 31-3 at ¶¶ 48, 49; ECF No. 31-4 at ¶¶ 33, 34; ECF No. 31-10; ECF No. 31-11; ECF No. 31-12; ECF No. 31-13.) Gutierrez and Eitel believed that Plaintiff did not perform well during the interview. (ECF No. 31-3 ¶ 52; ECF No. 31-4 at ¶ 36.) Gutierrez and Eitel believed that Plaintiff's responses to the interview questions failed to demonstrate that he understood the duties and goals for the Human Resource Specialist position, and that he appeared not to be prepared for the interview. (ECF No. 31-3 at ¶¶ 54, 57, 80; ECF No. 31-4 at ¶¶ 38-40.) In contrast, Gutierrez and Eitel believed that Marez, during her interview, demonstrated an understanding of the duties and goals for the Human Resource Specialist position. (ECF No. 31-3 at ¶ 60; ECF No. 31-4 at ¶ 43.)
On April 22, 2011, David Robbins, SBA's Associate Administrator for Management and Administration, conducted second round telephone interviews of both Plaintiff and Marez. ( Compare ECF No. 31 at ¶ 48 with ECF No. 36 at ¶ 48 (identifying that the parties do not dispute this fact).) Subsequent to Robbins' interviewing both candidates, Robbins conferred with Gutierrez and Eitel concerning which candidate to select for the position. (ECF No. 31-3 at ¶ 64; ECF No. 31-4 at ¶ 48.) Robbins, Gutierrez, and Eitel agreed that Marez was the superior candidate. (ECF No. 31-3 at ¶ 64; ECF No. 31-4 at ¶ 48.) On April 28, 2011, Gutierrez communicated that Plaintiff was not selected for the Human Resource Specialist position. (ECF No. 31-3 at ¶ 65; ECF No. ...