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Baker v. City and County of Denver

United States District Court, D. Colorado

January 5, 2016

BRENDA T. BAKER, Plaintiff,


Robert E. Blackburn United States District Judge

This matter is before me on The City’s Motion for Summary Judgment [#27][1]filed August 31, 2015. The plaintiff filed a response [#30], and the defendant filed a reply [#32]. I grant the motion.


I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question).


Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.[2] Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Farthing, 39 F.3d at 1134.

A party who does not have the burden of proof at trial must show the absence of a genuine issue of fact. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 514 U.S. 1004 (1995). By contrast, a movant who bears the burden of proof must submit evidence to establish every essential element of its claim or affirmative defense. See In re Ribozyme Pharmaceuticals, Inc. Securities Litigation, 209 F.Supp.2d 1106, 1111 (D. Colo. 2002).

In either case, once the motion has been properly supported, the burden shifts to the nonmovant to show by tendering depositions, affidavits, and other competent evidence that summary judgment is not proper. Concrete Works, 36 F.3d at 1518. All evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 528 U.S. 815 (1999) (abrogated on otr grounds, Martinez v. Potter, 347 F.3d 1208, 1210 - 1211 (10th Cir. 2003); Eisenhour v. Weber Cnty., 744 F.3d 1220, 1227 (10th Cir. 2014)). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir.), cert. denied, 120 S.Ct. 334 (1999).


The plaintiff, Brenda Baker, worked for the Office of Economic Development of the City of Denver during the time relevant to this case. She held the position of Business Development Associate II. On February 26, 2013, Ms. Baker met with her supervisor, Liz Kissee, for an in-person performance review. Ms. Kissee had completed her written performance review of Ms. Baker on or around February 6, 2013. Motion for summary judgment [#27], Exhibit B-5 [#27-1], CM/ECF pp 16 - 21. The performance review received final approval on February 7, 2013. The written performance review was not changed between February 6 and February 26, 2013. Id., Exhibit B, ¶ 13. Ms. Baker took issue with two sections of her performance review, where Ms. Kissee had given her “below expectations” rankings. The two “below expectations” rankings were based on documented absences of Ms. Baker and accounted for eight per cent of her overall score on the performance review. On the performance review, Ms. Baker was given an overall rank of “successful” and a score of 3.38 out of 5.0. Motion for summary judgment [#27], Exhibit B-5 [#27-1] CM/ECF p. 21. This ranking was higher than the 3.34 numerical ranking given to Ms. Baker by Ms. Kisee on the 2011 performance review of Ms. Baker. Motion for summary judgment [#27], Exhibit B [#27-1], ¶ 18. Based on her rank as “successful” on the 2012 performance review, Ms. Baker received a pay increase of 2.8 percent. Id., ¶ 19. The performance review did not affect adversely the job status of Ms. Baker, her compensation, or benefits.

On February 25, 2013, one day prior to the performance review meeting with Ms. Kissee, Ms. Baker told Ms. Kissee that a co-worker, Mark Dean, had fondled Ms. Baker’s breasts in her cubicle on or around January 31, 2013. Ms. Baker said Mr. Dean did this without her consent. Ms. Baker reported that Mr. Dean assaulted her on two occasions on January 31, 2013. The disclosure on February 25 was the first time Ms. Baker reported the January 31, 2013, incident with Mr. Dean to her supervisor. On February 25, Ms. Baker asked Ms. Kissee not to report the incident or do anything about it. Ms. Kissee reported the allegations to her supervisor, Curt Pesicka, on about February 27, 2013, and left a voice mail with a Senior Human Resources Professional of the city, Ranea Taylor, the same day.

On February 27, 2013, Ms. Taylor met with Ms. Baker concerning the 2012 performance review. Ms. Baker disclosed the conduct of Mr. Dean to Ms. Taylor during this meeting and asked Ms. Taylor not to disclose the allegations or take any action on them. Ms. Taylor told Ms. Baker that the city was obligated to investigate her claims and asked Ms. Baker to put her allegations in writing. On February 28, 2013, Ms. Kissee spoke to Ms. Taylor about the allegations of Ms. Baker. On March 5, 2013, Ms. Baker submitted an e-mail concerning the misconduct of Mr. Dean. In the e-mail, Ms. Baker said she did not believe she would have further issues with Mr. Dean, and she accepted his word that it will not happen again. Ms. Baker claims she wrote the e-mail involuntarily while under direct pressure from Mr. Dean.

On March 13, 2013, the city placed Mr. Dean on investigatory leave. The next day, the city began an internal investigation of the allegations against Mr. Dean. In addition, the city reported the allegations to the Denver Police. The Denver Police conducted an investigation which led to the filing of criminal charges against Mr. Dean. On July 30, 2013, he city terminated the employment of Mr. Dean.

Ms. Baker took leave under the Family and Medical Leave Act FMLA from March 14, 2013, to May 29, 2013. On May 28, 2013, Ms. Baker reported the behavior of Mr. Dean to the Denver Police. As of May 30, 2013, Ms. Baker’s FMLA leave was exhausted. On May 30, 2013, Ms. Baker sent a text message to her supervisor, Ms. Kissee, saying Ms. Baker needed to take the day off with pay. The city placed Ms. Baker on paid administrative leave from May 31, 2013, through June 10, 2013. According to the city, this was done so Ms. Baker would continue to receive compensation while the city conducted an interactive process to determine if a job accommodation was necessary to enable Ms. Baker to return to work. The leave did not alter the employment status, benefits, or pay of Ms. Baker.

The city initiated the ADA interactive process with Ms. Baker. Ms. Baker then told the city that she could perform the essential duties of her job, she would like to return to work, she did not want the interactive process to be initiated, and she did not need any accommodations at work. Motion for summary judgment [#27], Exhibit A [#27-7] (Baker Deposition), 166:21 - 167:3. Ms. Baker returned to work on June 11, 2013, in the position she held previously.

Ms. Baker contends she came to work on May 31, 2013, and worked about five hours. That day, Ms. Baker contends, the Denver Police came to the office where Ms. Baker worked to interview city employees, presumably about Mr. Dean. After the police left, Ms. Baker contends, Curt Pesicka, a city official, told Ms. Baker that she would be terminated immediately because the city did not think Ms. Baker could perform her duties because of her disabilities and health issues. She claims this was done in retaliation for her pursuing her complaint against Mr. Dean with the police . Response [#30], pp. 8 - 9. However, it is undisputed that Ms. Baker was put on paid administrative leave for the next ten days and then returned to her previous position. Motion for summary judgment [#27], Exhibit D-1 [#27-3], CM/ECF pp. 6-7 (letter concerning paid administrative leave). If Mr. Pesicka made these statements, the statements proved to be untrue, and the city took no action consistent with these statements.

In July 2013, after her return to work, Ms. Baker asked Curt Pesicka if she could move to a different cubicle because it was uncomfortable for her to work in the cubicle where the misconduct of Mr. Dean too place. The city agreed to move Ms. Baker to a different cubicle. In August 2013, the city began the process necessary to move Ms. Baker to a different cubicle. However, the move was not completed until November 2013.

In 2011, the city purchased a Freedom Chair to accommodate the back and spinal injuries suffered previously by Ms. Baker. Ms. Baker claims her Freedom Chair was broken during the assault by Mr. Dean on January 31, 2013. According to Ms. Baker, on February 11, 2013, she told Ms Kissee that the Freedom Chair was broken. According to Ms. Baker, in February 2013, she asked that the chair be replaced. Response [#30], p. 18. The chair was evaluated by a city employee in August 2014. The employee reported that “further attention may be necessary to the adjustable aspects of the chair. The headrest is suspect.” Response [#30], Exhibit 23. In January 2015, a manufacturer’s representative examined the chair at the request of the city. The representative made two adjustments and reported that “(e)verything on the chair was in working order. . . .” Motion for summary judgment [#27], Exhibit C-13 [#27-2], CM/ECF pp. 58 - 59.

In her complaint [#1], Ms. Baker asserts claims for gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e - 2000e. She also asserts a claim of disability discrimination under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12102 - 12213. In addition, she asserts claims of retaliation. She alleges the defendant retaliated against her based on her objection to and reporting of the unlawful sexual conduct of Mr. Dean, her objection to gender discrimination, and her complaints of retaliatory conduct by the defendant. Complaint [#1], ¶ 30. In addition, she alleges the defendant retaliated against her because she sought reasonable accommodation of her disability. Complaint [#1], ¶ 36.


Ms. Baker has not cited direct evidence of unlawful discrimination based on her gender. Thus, her gender discrimination claim must be analyzed under the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See, e.g., Turner v. Public Service Co. of Colorado, 563 F.3d 1136, 1142 (10th Cir. 2009) (McDonnell Douglas burden shifting analysis applicable to gender discrimination claim). Under the McDonnell Douglas framework, Ms. Baker has the initial burden to establish a prima facie case of gender discrimination. To establish a prima facie case of gender discrimination, Ms. Baker must come forward with evidence that (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was qualified for her position; and (4) she was treated less favorably than others not in the protected class. See, e.g., Turner, 563 F.3d at 1142.

The defendant contends Ms. Baker has not come forward with evidence which shows she suffered an adverse employment action. If so, her gender discrimination claim fails. An adverse employment action is 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) (internal quotation omitted). Ms. Baker appears to claim the following actions by the defendant constitute adverse employment actions: (1) the 2012 performance review; (2) the alleged improper handling by the city of her allegations against Mr. Dean; ...

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